Three-quarters of a decade ago, I briefly and perhaps naively commented on the confusing case law on the topic of birthright citizenship. I ended my comment saying:
my highest aspirations for most administrations these days is that they give us interesting cases that clear up confusing Constitutional issues... and I think there’s a decent chance the Roberts Court can still do that on some of these matters.
On the first day of his second term, President Trump issued an Executive Order directing federal agencies to not recognize US citizenship for individuals born in the US to temporary visitors or aliens who are not lawfully present in the US. Unsurprisingly, suits were filed in the courts. They worked their way up (and down and back up), and on December 5, 2025, the Supreme Court granted cert for a merits case on the following question:
The question presented is whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.
Oral arguments are scheduled for April 1, and presumably, it will be decided sometime in June. Most of the written briefs have been filed.1 You can find links to them here, but I read almost all of almost all of them2 so you don't have to! Unfortunately, I found almost all of almost all of them to be pretty boring and unhelpful.
So, rather than structure this in terms of who is arguing what, trying to then chain together references and so on, I've decided that I'm going to organize in a mostly-chronological telling of the case references cited by the principal briefs. I personally find it useful to think in this way, asking, "What was it that these people were doing (or at least, what did they think they were doing) at the time they were doing it?" I personally find this especially useful, since nearly every argument I've seen at the Court involves, shall we say, selective quoting. They're advocates, after all, and I don't blame them for it. It helps them win cases. But I find it harder to understand when you're starting from the current argument structure and then trying to fill in how their references are supposed to work. By progressing in mostly-chronological fashion, I think it more clearly pops out when one party or the other is stretching a bit with how their argument uses references.
British Common Law
Right off the bat, I have to again apologize. I mostly don't care about British common law. I know, I know. It might be important! It might even be crucial! The main briefs certainly talk about it plenty. Many of the briefs talk about it. I'm sure it will make an appearance of some form in the Opinion of the Court. But I have two main reasons why I'm not going to go through all the references here.
First is purely selfish. British common law is a long tradition. I have no particular experience/expertise slogging through it to figure out what's going on with it. Sure, the briefs point to various things that I could look up, but I'm basically just not going to. It's already taken enough time just going through the American legal writing.
Second, the Question Presented is directly about American law. It's a Constitutional provision and a statute (a history of statutes). There are plenty of American legal authorities around the time of the adoption of those American texts. They do, for sure, also reference British common law, and to that end, when they do, I will sometimes note how those American thinkers said British common law affected their opinions. But yeah, I'm not going to dig in to the actual British primary references and try to make sense of their stuff, too.
Legislative History
The briefs also do plenty of dueling quotations to various Congressmembers and such around the passing of amendments/laws. My sense is that there may be important information here, but that's also an entirely separate job on its own, diving through the federal register and other historical sources. If you're paying attention to other legal/history writers on this topic, I'm sure you can find plenty of other folks who really want to dig into it. I kinda don't want to do the job that I think would need to be done to do this justice. Feel perfectly fine in thinking that your preferred historian has the better part of this argument to whatever extent you think it affects the case in either direction.
The Citizenship Clause of the 14th Amendment
Fourteenth Amendment
Section 1
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.
I do need to put this in non-chronological order for a moment, because otherwise, it makes little sense why we jump to talking about foreign ministers (diplomats). The most straightforward way to understand the most major aspect of this case is that the debate is over the phrase "subject to the jurisdiction thereof". There are other components of the clause that we will return to, but this one is the biggie. Everyone agrees that the children of foreign diplomats, born on US soil, are not "subject to the jurisdiction thereof". If one constructs a theory for determining the precise extent of this phrase, it must account for diplomats.
Founding to Civil War
Act of Apr. 30, 1790, ch. 9, § 25, 1 Stat. 117
Petitioners3 make a claim that this only exempted foreign ministers from "writ or process", but didn't technically relieve them of an obligation to follow US law. I'm not going to quote the whole section, but feel free to read it. It's a pretty expansive exemption from basically any court being able to do anything to diplomats. Jumping ahead, but only to keep this part from being completely jarringly out of place, they cite the 1961 Vienna Convention on Diplomatic Relations, which says:
Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.
Respondents don't argue about this, but I observe that the Vienna Convention explicitly exempts them from criminal, civil, and administrative jurisdiction. Perhaps both at the founding and in 1961, there was a sense of, "You should still be a good boy and follow the laws," but I have a very hard time believing that this is particularly relevant. I get what Petitioners are trying to go for. There are multiple theories of what "subject to the jurisdiction thereof" means. It could be that they have an obligation/duty to follow US laws. It could be US gov't/courts can go after them for infractions. It could be something else. They're arguing here that the correct theory is not just that they have an obligation/duty to follow US laws, and thus, it's something else.
The Schooner Exchange v. McFaddon (1812)
Surprisingly, the very next authority cited, chronologically, is one that I think is huge for this case. This case is on the very short list of cases that I think you really must read. Both parties' briefs cite it; they do so approvingly; Respondents cite it eleven(!) times; I don't recall a single brief calling any aspect of this decision into question or treating it in any way other than good law.
The Schooner Exchange was a private ship owned by some folks from Maryland. It was seized on behalf of France, by orders of Napoleon. It was then armed and commissioned as French warship.4 The US had friendly relations with France, and so, the US allowed them to dock in Philadelphia after it encountered a storm. The original owners then sued to try to get their property back. Thus, a case.
The district court thought they did not have jurisdiction for the case; the circuit court reversed. It came to the Supreme Court.
This case certainly elucidates a theory of jurisdiction. Folks can dispute whether there are multiple different concepts of jurisdiction (and they do), but there is no questioning that this case provides at least one theory of jurisdiction:
The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power.
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. Any restriction upon it deriving validity from an external source would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction.
All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.
The question the Court set out to answer is whether the district court or the circuit court was right about whether US courts have jurisdiction over this type of claim. The Court understood this as a question about whether the nation has, indeed, consented to providing an exemption to this form of jurisdiction. It states that, "This consent may be either express or implied." It analyzes the express forms first and considers the nature of sovereigns.
This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation.
The first case is the person of the sovereign, himself. If Napoleon showed up in the US in person, dude is obviously going to be exempt from US jurisdiction. As a slight point of interest, what if a sovereign enters US territory without the consent of the US?
Should one sovereign enter the territory of another without the consent of that other, expressed or implied, it would present a question which does not appear to be perfectly settled -- a decision of which is not necessary to any conclusion to which the Court may come in the cause under consideration. If he did not thereby expose himself to the territorial jurisdiction of the sovereign whose dominions he had entered, it would seem to be because all sovereigns impliedly engage not to avail themselves of a power over their equal which a romantic confidence in their magnanimity has placed in their hands.
So, we don't really know, but probably no jurisdiction?
The second case is foreign ministers, as we've already discussed a bit.
This consent is not expressed. It is true that in some countries, and in this among others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege which he would not otherwise possess.
So, you don't have to pass an explicit law saying it. Why is this consent to exempt foreign ministers from local jurisdiction implied?
The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction which are admitted to attach to foreign ministers is implied from the considerations that without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission.
For the first time, we see the concept of "allegiance". One of the highly disputed aspects in understanding what "subject to the jurisdiction thereof" means is to what extent it involves some measure of "allegiance". The Court here does not fully explain how this causal relation works, but merely states that if a foreign minister were not exempted from the territorial jurisdiction, then he would "owe temporary and local allegiance" to the sovereign who is hosting him.
The third case is when a nation "allows the troops of a foreign prince to pass through his dominions." The Court says that the nation does not need to expressly state this exemption in law, either. This is because by "allowing" them to pass through, the nation effectively issues a "license":
We have seen that a license to pass through a territory implies immunities not expressed
But if those troops enter without consent?
Without doubt, a military force can never gain immunities of any other description than those which war gives by entering a foreign territory against the will of its sovereign.
We also see a distinction here already between 'regular' foreigners and military forces:
It is obvious that the passage of an army through a foreign territory will probably be at all times inconvenient and injurious, and would often be imminently dangerous to the sovereign through whose dominion it passed. Such a practice would break down some of the most decisive distinctions between peace and war, and would reduce a nation to the necessity of resisting by war an act not absolutely hostile in its character, or of exposing itself to the stratagems and frauds of a power whose integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons like these that the general license to foreigners to enter the dominions of a friendly power is never understood to extend to a military force, and an army marching into the dominions of another sovereign may justly be considered as committing an act of hostility, and if not opposed by force, acquires no privilege by its irregular and improper conduct. It may, however, well be questioned whether any other than the sovereign power of the state be capable of deciding that such military commander is without a license.
So, most foreigners are understood to have a general license to enter, but armies do not. If they enter without a license, they acquire no privilege. Moreover, it seems to be up to the sovereign alone to decide whether they have a license or not.
The Court states that the considerations are slightly different for naval war vessels. Nations can close their ports generally, but if they're open, as was generally the case, they're open for war vessels from friendly nations, and that comes with a license:
In almost every instance, the treaties between civilized nations contain a stipulation to this effect in favor of vessels driven in by stress of weather or other urgent necessity. In such cases, the sovereign is bound by compact to authorize foreign vessels to enter his ports. The treaty binds him to allow vessels in distress to find refuge and asylum in his ports, and this is a license which he is not at liberty to retract.
Even if there is no formal treaty, the Court finds that this license, with immunities, is implied:
If there be no treaty applicable to the case, and the sovereign, from motives deemed adequate by himself, permits his ports to remain open to the public ships of foreign friendly powers, the conclusion seems irresistible that they enter by his assent. And if they enter by his assent necessarily implied, no just reason is perceived by the Court for distinguishing their case from that of vessels which enter by express assent.
They discuss some possible special cases concerning distressed ships, but they're not the most important for us. The Court does clearly distinguish between public and private vessels:
it is admitted that private ships entering without special license become subject to the local jurisdiction
and
a clear distinction is to be drawn between the rights accorded to private individuals or private trading vessels and those accorded to public armed ships which constitute a part of the military force of the nation.
Now comes the money quote, one I quoted three-quarters of a decade ago, which fleshes out the situation of private individuals generally:
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.
Here, we again see an appearance of "temporary and local allegiance".5 It still seems to be linked directly to whether or not they are "amenable to the jurisdiction". These folks are still under an "implied license", but this license includes some form of requirement of "temporary and local allegiance", and does not include an exemption from jurisdiction.
There are some weird questions here. A license of some form is pretty much always required to enter. That license can be expressed or implied. It may contain privileges/immunities/exceptions to jurisdiction or not, depending. Sometimes, those privileges or lack thereof are intertwined with a "temporary and local allegiance", as in the cases of foreign ministers and 'regular' foreigners. But I think not always. For example, if a sovereign or army enters without consent, without any form of license, the former appears likely to still have privileges for sort of magical reasons, but the latter do not receive any privileges. Would it make sense to say that there is an implied "temporary and local allegiance" in either of these cases? I think probably not, but the Court does not say explicitly.
Crucially for the present-time case, regular foreigners were under a "general license", which was implied on entry, which imputed temporary and local allegiance, and which did not come with any privileges/immunities/exceptions to jurisdiction.
Also crucially for the present case, while the Court addressed sovereigns or armies entering without consent or a license, they simply did not address the case in which there was an express denial of license for regular foreigners to enter. They simply did not discuss any case where there was federal law prohibiting individuals from entering. What happens in that case, if they enter anyway? Is there "temporary and local allegience"? Are there privileges/immunities/exceptions to jurisdiction under this theory of jurisdiction? Are those things connected here, like they are for foreign ministers/regular foreigners with a (at least implied) license? Or might they possibly seem disconnected and tethered to other principles, like in the cases of sovereigns/armies entering without consent?
In any event, the Court determined that the Schooner Exchange was properly an official French public armed ship.
She constitutes a part of the military force of her nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and his dignity. The implied license, therefore, under which such vessel enters a friendly port may reasonably be construed, and it seems to the Court ought to be construed, as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rites of hospitality.
Because this case was specifically about an armed ship that was part of the military force of a nation, one might be tempted to view the rest of the reasoning about licences/allegiance/jurisdiction/etc. as being dicta.6 Perhaps this is so. However, as we will see, I don't believe there is any support in later cases that later Courts have said, "This stuff was dicta and can mostly be ignored." Moreover, I don't think we'll anything where later courts say that any part of this dicta or general theory was wrong. As mentioned, both parties' briefs view Schooner Exchange as good law, and they cite this dicta as correct and relevant. The opinion was written by Chief Justice Marshall, whose work is still extremely respected in many ways.
In the end, Schooner Exchange provides a framework for a theory of these concepts, one that will be drawn on by many of the other relevant cases that we will encounter. It is extremely useful to be very familiar with it.
The Venus (1814)
The United States declared war on Britain on June 18, 1812. You might have heard of this war. They sometimes mention it in schools in the US. However, at that time, there was no internet; there was no twitter; there was no rule at TheMotte against first-posting breaking news, because there didn't have to be. News traveled slowly.
About two weeks later, on July 4, a private trading ship, The Venus set sail from Liverpool, heading to New York, under a British license. It appears accepted by the Court that the shippers in Britain did not know and could not have known about the declaration of war at the time that The Venus departed Britain. On its journey, it was captured by an American privateer, with the capture being justified by the declared war.
Owners of the ship and its cargo sued to get their stuff back. The easier claim was concerning some cargo that was sent by a British seller to an American recipient. The Court determined that, because of how the contract was done, the cargo still technically belonged to the British seller while it was on the ship, so they're out of luck.
The much harder claim was from three folks, who were all native British subjects, but had lived in the US and naturalized as US citizens. They all had moved back to Britain prior to the war starting. At the time of the case, their disposition was thus:
Maitland is yet in Great Britain, but has, since he heard of the capture, expressed his anxiety to return to the United States, but has been prevented from doing so by various causes set forth in his affidavit. McGregor actually returned to the United States sometime in May last [me: I believe this would have been 1813]; Jones is still in England.
The primary import of this case is that it discusses concepts of residence, domicile, and allegiance. The court appeals significantly to the law of nations:
The writers upon the law of nations distinguish between a temporary residence in a foreign country for a special purpose and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel "domicile," which he defines to be, "a habitation fixed in any place, with an intention of always staying there." Such a person, says this author, becomes a member of the new society, at least as a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens, but is nevertheless united and subject to the society without participating in all its advantages. This right of domicile, he continues, is not established unless the person makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. Grotius nowhere uses the word "domicile," but he also distinguishes between those who stay in a foreign country by the necessity of their affairs or from any other temporary cause and those who reside there from a permanent cause. The former he denominates "strangers" and the latter "subjects," and it will presently be seen by a reference to the same author what different consequences these two characters draw after them. [citations removed]
So, the Court thinks that there is an important distinction between simply residing in a foreign country and having a domicile there. Distinguishing between these cases can be tricky, though, as it seems to turn on an individual's intent. Do they intend to stay there permanently? The extreme case showing the primacy of intent is put in this way:
If it sufficiently appear that the intention of removing was to make a permanent settlement, or for an indefinite time, the right of domicile is acquired by a residence even of a few days.
If an individual acquires the right of domicile, they "acquire the national character" of the country in which they are domiciled. However, the court also acknowledges that a US citizen has a "permanent allegiance" with the US. How is this tension managed in the event that there is war declared between the country to which one owes "permanent allegiance" and the country in which one has the "right of domicile", whose "national character" they have acquired?
a neutral or subject, found residing in a foreign country is presumed to be there animo manendi [intending to remain], and if a state of war should bring his national character into question, it lies upon him to explain the circumstances of his residence.
If he engages in hostilities alongside the enemy, he is obviously treated as an enemy. If he just stays put, he is
adhering to the enemy, although not criminally so, unless he engages in acts of hostility against his native country, or probably refuses, when required by his country, to return.
So, he might be required to return by the US. The good news is that the nations should allow neutral individuals to return to the home of their permanent allegiance:
It is his duty to commit no acts of hostility against his native country, and to return to her assistance when required to do so; nor will any just nation, regarding the mild principles of the law of nations, require him to take arms against his native country or refuse her permission to him to withdraw whenever he wishes to do so unless under peculiar circumstances which, by such removal at a critical period, might endanger the public safety. The conventional law of nations is in conformity with these principles. It is not uncommon to stipulate in treaties that the subjects of each shall be allowed to remove with their property or to remain unmolested. Such a stipulation does not coerce those subjects either to remove or to remain. They are left free to choose for themselves, and when they have made their election, they claim the right of enjoying it under the treaty.
The major point of contention between the Opinion of the Court (Justice Washington) and the dissent (Chief Justice Marshall) is whether an individual must overtly make that choice in order to have the property rights desired here by the US citizen owners of The Venus. Justice Washington, speaking for the Court, says that they must:
until the election is made, their former character continues unchanged.
Chief Justice Marshall agrees with all of the principles and the framework in which the Court is operating. However, he disagrees that an individual must overtly elect to return to the US prior to asserting such property rights:
A merchant residing abroad for commercial purposes may certainly intend to continue in the foreign country so long as peace shall exist, provided his commercial objects shall detain him so long, but to leave it the instant war shall break out between that country and his own. This intention it is not necessary to manifest during peace, and when war shall commence, the belligerent cruiser may find his property on the ocean and may capture it before he knows that war exists. The question whether this be enemy property or not depends, in my judgment, not exclusively on the residence of the owner at the time, but on his residence taken in connection with his national character as a citizen, and with his intention to continue or to discontinue his commercial domicile in the event of war.
So, the whole Court agrees on the residence/domicile/national character stuff. Marshall just thinks that you can simultaneously intend to permanently reside in a foreign country and also intend to, uh, not permanently reside and return home if war were to break out.
There are other interesting details which some might enjoy reading, but this is probably sufficient for our purposes.
The Pizarro (1817)
We're three-for-three in having our earliest relevant cases being about, and named after, ships. Take that for what you will.
Pizarro was a private ship, sailing under Spanish colors, heading from Liverpool to Florida. It was, surprise surprise, captured and brought to the US. Surprise surprise, some people sued about who should get it and its cargo. The primary issue was that folks apparently threw some of the paperwork overboard, so, uh, does that change anything? The Court sets out to determine "the Spanish character of the ship". It concludes that it is, indeed, Spanish. It considers to objections to this determination:
- that the ship is not documented according to the requisitions of the treaty with Spain, and therefore not within the protection of that treaty; 2. that it does not appear that Mr. Hibberson (who is a native of Great Britain) has ever been naturalized in the dominions of Spain, and therefore he is not a subject of Spain within the meaning of the treaty.
The first one is kind of boring for us. The analysis for the second one is short enough that I might as well just quote it in full:
As to the second objection, it assumes as its basis that the term "subjects," as used in the treaty, applies only to persons who, by birth or naturalization, owe a permanent allegiance to the Spanish government. It is, in our opinion, very clear that such is not the true interpretation of the language. The provisions of the treaty are manifestly designed to give reciprocal and coextensive privileges to both countries, and to effectuate this object the term "subjects," when applied to persons owing allegiance to Spain, must be construed in the same sense as the term "citizens," or "inhabitants" when applied to persons owing allegiance to the United States. What demonstrates the entire propriety of this construction is that in the 18th article of the treaty, the terms "subjects," "people," and "inhabitants" are indiscriminately used as synonymous, to designate the same persons in both countries and in cases obviously within the scope of the preceding articles. Indeed, in the language of the law of nations, which is always to be consulted in the interpretation of treaties, a person domiciled in a country and enjoying the protection of its sovereign is deemed a subject of that country. He owes allegiance to the country while he resides in it -- temporary, indeed, if he has not, by birth or naturalization, contracted a permanent allegiance -- but so fixed that, as to all other nations, he follows the character of that country in war as well as in peace. The mischiefs of a different construction would be very great, for it might then be contended that ships owned by Spanish subjects could be protected by the treaty although they were domiciled in a foreign country with which we were at war, and yet the law of nations would in such a predicament pronounce them enemies. We should therefore have no hesitation in overruling this objection even if it were proved that Mr. Hibberson was not a naturalized subject of Spain; but we think the presumption very strong that he had become, in the strictest sense of the words, a Spanish subject.
I don't know that this adds all that much to what we've already seen. It's all pretty much within the same general framework. If it adds anything, it's adding some analysis about the term "subjects". However, one could debate whether this reading of the term is tied very specifically to the treaty they're interpreting or is more generally applicable.
General Crimes Act of 1817 (and 1834)
Petitioners claim that these acts show that Congress exercised the power to punish Indians for crimes against non-Indians in Indian country. I have not independently verified this claim. Respondents don't appear to have responded to it. This is an attempt to say that there might be different definitions of "jurisdiction" floating around. I don't have much more to say about this at this point.
US v. Rice (1819)
As part of that war you might have heard about in school, Britain occupied part of Maine and set up a custom house there. Somebody imported some goods through there and paid the Brits a duty. After the US had retaken it, a US customs collector wanted to also collect an additional duty on behalf of the US. Somebody didn't want to pay. Since we're already so familiar with the framework, we can dispatch of this case again with a reasonable-length quote:
Under these circumstances, we are all of opinion that the claim for duties cannot be sustained. By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for where there is no protection or allegiance or sovereignty, there can be no claim to obedience. Castine was therefore, during this period, so far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by the inhabitants were subject to such duties only as the British government chose to require. Such goods were in no correct sense imported into the United States.
The subsequent evacuation by the enemy and resumption of authority by the United States did not and could not change the character of the previous transactions.
If it adds anything to our story, it is that if you're just a nobody in some territory that is taken over by a foreign power, while they're in charge, you have "temporary allegiance" to them. I do wonder if this creates other puzzles for us much much much later7, but that's maybe a problem for another day.
Inglis v. Trustees of Sailor's Snug Harbor (1830)
Inheritance, trusts, and multiple long opinions? Ew. This one is starting to get more complicated. I'm going to try to simplify it by ignoring basically all of the details of the facts, what's going on with the inheritance/trust stuff. There's just a guy, John Inglis, who wants to inherit some stuff. For reasons that don't matter to us, it matters whether he's a US citizen. He appears to have been born in the City of New York, but perhaps his birth date could matter. You see, significant events happened around that time. The Declaration of Independence, Britain capturing and occupying New York, the US regaining it with the Treaty of Paris. The kicker is that the Court doesn't seem to know the actual date that John Inglis was born, so the opinions proceed hypothetically (if he was born between this date and that date, then...).
Justice Thompson wrote the Opinion of the Court. Justice Johnson concurred, but I don't think he wrote anything particularly relevant for the citizenship question. Justice Story dissented. Before we get to the details of the reasoning, let's just see if we can spot the differences. From Justice Thompson:
- If the demandant [John Inglis] was born before 4 July, 1776, he was born a British subject, and no subsequent act on his part or on the part of the State of New York has occurred to change that character; he of course continued an alien, and disabled from taking the land in question by inheritance.
- If born after 4 July, 1776, and before 15 September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority, which never having been done, he remains a British subject and disabled from inheriting the land in question.
- If born after the British took possession of New York and before the evacuation on 25 November, 1783, he was, under the circumstances stated in the case, born a British subject, under the protection of the British government, and not under that of the State of New York, and of course owing no allegiance to the State of New York. And even if the resolutions of the convention of 16 July, 1776 should be considered as asserting a rightful claim to the allegiance of the demandant and his father, this claim was revoked by the act of 1779, and would be deemed a release and discharge of such allegiance, on the part of the state, and which laving been impliedly assented to, by the demandant, by withdrawing with his father from the State of New York to the British dominions and remaining there ever since worked a voluntary dissolution, by the assent of the government and the demandant, of whatever allegiance antecedently existed, and the demandant at the time of the descent cast was an alien and incapable of taking lands in New York by inheritance.
- When Charles Inglis, the father, and John Inglis, his son, withdrew from New York to the British dominions, they had the right of electing to become and remain British subjects. And if the grand assize shall find that in point of fact they had made such election, then the demandant at the time of the descent cast was an alien, and could not inherit real estate in New York.
Versus Justice Story:
- That if the demandant was born before 4 July, 1776, he was born a British subject.
- That if he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, and that it makes no difference in this respect whether or not parents had at the time of his birth elected to become citizens of the State of New York by manifesting an intention of becoming permanently members thereof in the sense which I have endeavored to explain.
- That if the demandant was born after 15 September, 1776, when the British took possession of New York, and while his parents were there residing under the protection of and adhering to the British Crown as subjects, de facto he was born a British subject, even though his parents had previously become citizens of the State of New York.
- That if the demandant was born after 15 September, 1776, and could be deemed (as I cannot admit) a citizen of the State of New York in virtue of his parents having, before the time of his birth, elected to become citizens of that state, still his national character was derivative from his parents, and was under the peculiar circumstances of this case, liable to be changed during the Revolutionary War, and that if his parents reverted to their original character as British subjects and adhered to the British Crown, his allegiance was finally fixed with theirs by the treaty of peace.
- That it was competent for the British government to insist at all times during the Revolutionary War upon retaining the allegiance of all persons who were born or became subjects, and for the American states to insist in the like manner. But that the treaty of peace of 1783 released all persons from any other allegiance than that of the party to whom they then adhered and under whose allegiance they were then, de facto, found. That if the demandant's father was at that time so adhering, it was a final settlement of his allegiance on the British side, and that the demandant, unless born after 4 July, 1776, and before 15 September 1776, remained, to all intents and purposes, a British subject
- That if the case of McIlvaine v. Coxe's Lessee, 4 Cranch 209, should be thought to have overturned this doctrine so that it is no longer reexaminable, still that in this case the parents had a right to elect to which government they would adhere, and that a period up to 15 September, 1776, was not an unreasonable time for that purpose, and that unless some prior clear act of election could be shown, the adherence to the British from 15 September to the close of the war afforded strong evidence to repel the presumption of any prior election to become citizens arising from the fact of abiding in the state up to that period.
Oof. Even just seeing the differing conclusions is a lot. Let me try to put a little structure to it.
First, Thompson and Story agree that the US simply doesn't have to view individual cases in the same way that Britain does. That is, the US thinks that the Declaration of Independence is important, whereas Britain just ignores that and treats it as though the Treaty of Peace was the only critical moment.
They further agree that everyone born in the US prior to the Declaration were born British subjects. But from the US perspective, once independence has been declared, those people have an opportunity to 'pick a side'. When do they pick? Thompson says:
if the right of election is at all admitted, it must be determined in most cases by what took place during the struggle, and between the declaration of independence and the treaty of peace. To say that the election must have been made before or immediately at the declaration of independence would render the right nugatory.
I won't substantially quote Justice Story here; suffice to say I think he substantially agrees. Now, before dealing with John, I'm going to jump to where both opinions deal with his father, Charles. They both think that Charles' status may be relevant in some cases, and they both consider it. Thompson says:
He resided in the City of New York at the declaration of independence, and remained there until he removed to England a short time before the evacuation of the city by the British in November, 1783; New York during the whole of that time, except from July to September 1776, being in possession, and under the government and control of the British, he taking a part and acting with the British, and was, according to the strong language of the witness, as much a royalist as he himself was, and that no man could be more so. Was Charles Inglis under these circumstances to be considered an American citizen? If being here at the declaration of independence necessarily made him such, under all possible circumstances he was an American citizen. But I apprehend this would be carrying the rule to an extent that never can be sanctioned in a court of justice, and would certainly be going beyond any case as yet decided.
The facts disclosed in this case, then, lead irresistibly to the conclusion that it was the fixed determination of Charles Inglis the father, at the declaration of independence, to adhere to his native allegiance.
Justice Story appears to generally agree with this basic reasoning. John's parents would have had to choose to become citizens, but they didn't. Maybe there's one more hope for his parents, though. Both Justices address that there was a resolution of the convention of New York on July 16, 1776 stating
"that all persons abiding within the State of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state."
Justice Thompson dispatches of this pretty quickly:
Charles Inglis was not, within the reasonable interpretation of this resolution, abiding in the state and owing protection to the laws of the same. He was within the British lines, and under the protection of the British army, manifesting a full determination to continue a British subject.
Justice Story goes into more detail, focusing on the word "abiding" in a similar way to how we've seen "domicile":
We must, then, give a rational interpretation to the word, consistent with the rights of parties and the accompanying language of the ordinance. By "abiding" in the ordinance is meant not merely present inhabitants, but present inhabitancy coupled with an intention of permanent residence. This is apparent from the next clause of the ordinance, where it is declared
"That all persons passing through, visiting, or making a temporary stay in the state being entitled to the protection of the laws during the time of such passage, visitation, or temporary stay owe during the same allegiance thereto."
Their "temporary stay" is manifestly used in contradiction to "abiding," and shows that the latter means permanent intentional residence. So Mr. Chief Justice Spencer, in Jackson v. White, considered it. He says
"Residence in this state prior to that event [the declaration of independence] imported nothing as regards the election or determination of such residents to adhere to the old or adopt the new government. The temporary stay mentioned in the resolution of the convention passed only twelve days after the declaration of independence by Congress and within five days after the adoption of the declaration by the convention of this state, clearly imports that such persons who were resident here without any intention of permanent residence were not to be regarded as members of the state;"
they had a right to a reasonable time therefore, after the ordinance was passed, to decide whether, with reference to the new government, they would adopt a permanent residence in the state and to become members thereof. [citations removed]
So, they agree that John's parents were not citizens. They would have had to make a choice. But John was just an infant! How could he possibly have made a choice? Justice Thompson dispatches of this pretty quickly:
John Inglis, if born before the declaration of independence, must have been very young at that time and incapable of making an election for himself, but he must, after such a lapse of time, be taken to have adopted and ratified the choice made for him by his father, and still to retain the character of a British subject, and never to have become an American citizen, if his father was so to be considered. He was taken from this country by his father before the treaty of peace, and has continued ever since to reside within the British dominions without signifying any dissent to the election made for him, and this ratification, as to all his rights, must relate back, and have the same effect and operation as if the election had been made by himself at that time.
That's enough at this point to understand Justice Thompson's Opinion of the Court. If John was born before the Declaration or while NY was occupied, he was a natural-born British subject. If he was born in between, on newly US soil, he would have had a choice. Effectively, his parents made the choice for him, and John never showed even a single sign of going back on that choice.
Justice Story more or less agrees with most of that. There is one major point of contention and one point where Justice Story reached out just a little bit further. Let's start with the latter. What if John's parents had elected to become citizens of NY? The Court didn't have to address this hypothetical, but it's an interesting note that differs from the way we often think about citizenship in modern times.
But even admitting that his parents did elect to become citizens of New York before 15 September, 1776, still I am of opinion that the demandant, if he was born after the British took possession of the City of New York in September, 1776, while his parents were under the protection of and adhering to the British government de facto, was to all intents and purposes an alien born. To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government. This is clear from the whole reasoning in Calvin's Case. Now in no just sense can the demandant be deemed born within the ligeance of the State of New York, if, at the time of his birth, his parents were in a territory then occupied by her enemies and adhering to them as subjects, de facto, in virtue of their original allegiance. [citation removed]
Our modern sensibilities think that if your parents are US citizens, you're pretty much just always a US citizen everywhere. That may be the case in modern times, with changes in the laws. But Justice Story doesn't think it was the case at that time. He thinks that, even if his parents were NY citizens, if John was born during the British occupation, he was both born in British-controlled territory and his parents were still, as a matter of fact, adhering to them as subjects. He thinks that's enough to make John not a citizen.
In any event, we finally arrive at their point of disagreement, which is the biggie. I will return to Justice Story's general principles section first, where he writes:
Now allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship -- first, birth locally within the dominions of the sovereign, and secondly birth within the protection and obedience, or in other words within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to the sovereign as such, de facto.
He has a further general principle concerning the perpetual nature of birth allegiance:
The general principle of the common law also is that the allegiance thus due by birth cannot be dissolved by any act of the subject. It remains perpetual unless it is dissolved by the consent of the sovereign or by operation of law.
The only analysis he then provides for the major case in which he disagrees with the court is:
If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.
which is then reiterated in the conclusory section:
- That if he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, and that it makes no difference in this respect whether or not parents had at the time of his birth elected to become citizens of the State of New York by manifesting an intention of becoming permanently members thereof in the sense which I have endeavored to explain.
I would describe this as that Justice Story wants the Full Schooner, even though he doesn't actually cite The Schooner Exchange (he doesn't actually cite anything for this "settled...doctrine"). He doesn't rehash things about licenses or jurisdiction, but it's clear that his parents were allowed to be there, and even if it was only temporary, that would have made John a citizen perpetually.
Of course, Justice Story lost in this case, but dissents can be influential. Later rulings could have overturned this part of the Court's majority in Inglis, either implicitly or explicitly. So too, could later statutes/amendments. But this is a description of what went down and how.
Shanks v. Dupont (1830)
After slogging through Inglis, this case seems almost easy (at least for our purposes; it's another inheritance, and ew). Justice Story has the Opinion of the Court this time, and he mercifully agrees that he doesn't need to subject us to a mountain of paper this time:
After the elaborate opinions expressed in the case of Inglis v. Trustees of the Sailor's Snug Harbor upon the question of alienage, growing out of the American Revolution, it is unnecessary to do more in delivering the opinion of the Court in the present case than to state in a brief manner the grounds on which our decision is founded. [citation removed]
It's extra easy, because it is perfectly compatible with both sides of the disagreement in Inglis.
Ann Shanks was born in South Carolina prior to the Declaration of Independence. As we now know, that means she was born a British subject. Unlike John Inglis, "her father adhered to the American cause and remained and was at his death a citizen of South Carolina." The Court also somehow doesn't know when she was born, so she might have been a kid. If she wasn't a kid, she might have done stuff to elect to become a SC citizen. The Court doesn't know, but they just assume that she was a SC citizen.
Now, the Court doesn't point this out, but remember that bit from Justice Story's dissent in Inglis about how if you're born a citizen, the allegiance is perpetual? Yeah, Ann wasn't born a citizen, so it's not so permanent. Ann married a British officer and moved to Britain before the Treaty of Peace.
In some intermediate draft version, I pulled this discussion out of my write-up on Inglis, but the gist of it is that both Britain and the US recognize that there were a bunch of people in the colonies whose allegiance was kind of up in the air, and at the moment of the Treaty of Peace, many of those were settled. Brits went to Britain and adhered to Britain; Americans stayed in America and adhered to America.
Since Ann left for Britain before the Treaty of Peace and never came back, her final allegiance was fixed, and she was a British subject.
Cherokee Nation v. Georgia (1831)
Oof, "Indian Law". It's so complicated. I don't understand it. I guess I'll try to read it.
I'm not even going to factual background this one; Chief Justice Marshall starts us off:
Do the Cherokees constitute a foreign state in the sense of the Constitution?
The counsel have shown conclusively that they are not a State of the union, and have insisted that, individually, they are aliens, not owing allegiance to the United States. An aggregate of aliens composing a State must, they say, be a foreign state. Each individual being foreign, the whole must be foreign.
This argument is imposing, but we must examine it more closely before we yield to it. The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence. In the general, nations not owing a common allegiance are foreign to each other. The term foreign nation is, with strict propriety, applicable by either to the other. But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else.
There are factors in favor and factors against. Some laws treat them as a State. But does the Constitution? Indian Territory is part of US territory.
In all our intercourse with foreign nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens. They acknowledge themselves in their treaties to be under the protection of the United States
Okay, maybe I'll pause here. He says that they are "within the jurisdictional limits of the United States". That could be important, when we're trying to figure out what concept of "jurisdiction" matters. He says that they're "under the protection of the United States". That could matter too, given some of the things we've seen.
They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.
They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their Great Father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory and an act of hostility.
As I said three-quarters of a decade ago, "Indians are weird, yo." They are considered "so completely under the sovereignty and dominion of the United States". That seems important for some of the concerns we're tracking.
He talks about how the Constitution seems to separate out "foreign nations" from "Indian tribes", so there's some textual hook. I don't know. I don't really grok the rest of this. They're not a foreign State, I guess. But some of those pieces seem like they're going to come up again in the future.
United States v. Rogers (1846)
Indian Law. Gon' try to be quick. Two white guys. Both born US citizens. Both moved to Cherokee territory and married Cherokee women. Established "domicile" in that they intended to stay there permanently. Incorporated themselves into the tribe. The "proper authorities" of the tribe are said to have treated, recognized, and adopted them each and determined that they were entitled to exercise and did exercise all the rights and priviliges of a Cherokee.
...then one of them murdered the other.
Generally speaking, Chief Justice Taney says,
It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to their authority, and where the country occupied by them is not within the limits of one of the states, Congress may by law punish any offense committed there, no matter whether the offender be a white man or an Indian.
However, the statute that would be relevant for the prosecution says that it "shall not extend to crimes committed by one Indian against the person or property of another Indian." This one is mercifully quick, even if alien to modern ears:
He may by such adoption become entitled to certain privileges in the tribe, and make himself amenable to their laws and usages. Yet he is not an Indian, and the exception is confined to those who by the usages and customs of the Indians are regarded as belonging to their race. It does not speak of members of a tribe, but of the race generally -- of the family of Indians, and it intended to leave them both, as regarded their own tribe, and other tribes also, to be governed by Indian usages and customs. And it would perhaps he found difficult to preserve peace among them, if white men of every description might at pleasure settle among them, and, by procuring an adoption by one of the tribes, throw off all responsibility to the laws of the United States, and claim to be treated by the government and its officers as if they were Indians born. It can hardly be supposed that Congress intended to grant such exemptions, especially to men of that class who are most likely to become Indians by adoption, and who will generally be found the most mischievous and dangerous inhabitants of the Indian country.
The Court also discusses a treaty between the US and the Cherokee, and just concludes that there's nothing in it that says any different.
So, maybe not that interesting for us. Some bits about territorial limits, subject to the authority and such. But, "Indians are weird, yo."
Lynch v. Clarke, 1 Sand. Ch. 538 (1844)
Not SCOTUS. New York Court of Chancery. I've heard the Short Circuit podcast folks talk about these courts, but it's never really really sunk in. It was the highest court of equity in NY, which is different than courts of law. It was abolished and folded into the NY Supreme Court three years after this case. I'm going to try to not spend much time on non-SCOTUS cases, since this is already going to be unconscionably long, but that said, Respondents cite this case a lot. They claim that many other legal commenters cited this case, and that it was influential in the decades leading up to the 14th Amendment.
In their defense, it nearly reads like an amicus brief for their case. Julia Lynch was born in NY when her parents were on a trip of just a few years from Ireland. The court definitely thinks she's a citizen. It quotes some of the things we've seen already, and plenty of that British Common Law that we've ignored. I'm not going to quote it extensively, but yeah, if you want to read it, there's plenty there that appears to support citizenship for children of temporary visitors. Just one money quote, perhaps:
Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.
Most of that is fairly familiar to us. "Within the dominions and allegiance", and how that may be a bit subtle. It also says "whatever were the situation of his parents". Sometimes, the opinion substitutes "status" or "citizenship" here. Especially if you pull a quote with "status", it seems like it might be very relevant to today.
The court quotes Justice Story in Inglis, but doesn't quote The Schooner Exchange, even though I think what Justice Story (and the court here) wanted was the Full Schooner. There's no longer a discussion about licenses and jurisdiction and stuff.
Hardy v. De Leon, 5 Tex. 211, 23 (1849)
Supreme Court of Texas, not SCOTUS. A brief search doesn't even pull up enough text of the opinion to get to the brief quote that was in Petitioner's brief. TBH, I'm just not going to dig further. It's not SCOTUS. Check it out if you care.
I suppose that because I can't easily find it, I'll at least give you the sentence from Petitioner's brief about it:
The Texas Supreme Court explained that the exception to birthright citizenship for “‘children of parents who were in itinere in the country’” is “fully sanctioned by law” and “too rational and well settled to admit of a question.”
Sure, plausibly sounds like it's on their side. Petitioners didn't make nearly as much hay out of this one as Respondents did about Lynch, so hopefully that also helps justify slightly fewer words.
Dred Scott v. Sandford (1856)
Another biggie. It is entirely plausible that you have never even heard of a single case we've discussed so far, but it's highly likely you've heard of Dred Scott. It's very famous. Infamous is more correct. Both parties today agree strongly that a major purpose, if not the major purpose of the Citizenship Clause of the Fourteenth Amendment was to declare, "Dred Scott was wrong!" There is, however, some debate over the reason(s) which 14A embraced in proclaiming that Dred Scott was wrong. As such, it's worth at least taking a glance at.
That said, the opinions are also long. And numerous. Every single one of the nine justices wrote separately, with seven in the majority and two dissenting. There are many interwoven issues - citizenship, slavery, race, federalism, and plenty more. This case has been studied over and over, from every aspect. I am not going to be able to cover it thoroughly. I'm not even going to do it half thoroughly. I'm probably not going to do it quarter thoroughly or eighth thoroughly, or maybe even less. Honestly, I just can't. It's too much. If you've made it this far and read what we've gone through already, you'll know that I'm not saying that lightly. I will try to give at least some basic idea of the many interlocking issues, hopefully cover enough that what the current party briefs say about the case makes some sense, as well as provide a few remarks as to how it appears to relate to the story we've seen so far. If anyone wants to say, "...but you missed this aspect of Dred Scott," that's totally fair. I almost certaintly did. And your point very well may be relevant to today's case.
Might as well jump right in, I guess. Chief Justice Taney tells us that the main question can be stated relatively simply:
The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?
It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State in the sense in which the word "citizen" is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.
Given that we've already seen significant argumentation at the Court concerning the status of Indians, he quickly tries to distinguish:
The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian Governments were regarded and treated as foreign Governments as much so as if an ocean had separated the red man from the white, and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different Governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war, and the people who compose these Indian political communities have always been treated as foreigners not living under our Government. It is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race, and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign Government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States, and if an individual should leave his nation or tribe and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.
Right of the bat, we've got a big "uh, that's weird". We just looked at Chief Justice Marshall's opinion in Cherokee Nation and Taney's own opinion in US v. Rogers, and, well, it certainly didn't seem like the Indian tribes were being treated "like ... any other foreign Government". In fact, I thought it was kind of the opposite of that? Have I mentioned that part of the problem with understanding Dred Scott is that lots of folks think that it was just poorly-reasoned on its own terms, and in context of what came before it? Yeah, I'm not sure I can make actual sense of this. I don't know if Taney is trying to implicitly reverse some of that prior stuff or thinks they're somehow compatible in a way unstated, or what. I guess we'll just move on?
The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
This sort of analysis is quite unfamiliar to anything we've seen so far. Rather than any business about jurisdiction, licenses, allegiance, etc., it seems to be posing the question as whether a class of people are the "type" of people that one wants to be part of the "people of the United States". Or at least, maybe, the type of people that one wants to be able to be part of the government. A couple remarks.
First, I shouldn't have to say it, at least not in this community, but yes, this opinion is pretty racist. There is a lot of debate about the edges of the meaning of the word "racist", but I think that nearly all of them probably include this opinion. Take that however you will, but it is reasonable to note, given that there is modern debate over which and how many aspects of Dred Scott were repudiated by 14A. I think that most folks today generally agree that Dred Scott embraced racial classifications and subjugation along racist lines, and one of the things that 14A reversed was this.
Second, one can pretty quickly see how federalism concerns ended up mixed in when viewed this way. Who gets to decide which "type" of people should be subjugated, which should be citizens, and if there is any difference, who should be eligible to be part of the government? States were already going different ways on these questions. The Whittington brief claims that while some Southern states were denying citizenship altogether, some Northern states were claiming that they could become citizens... but that their citizenship didn't provide them the right to govern or vote.8 Moreover, can one State's choices on these questions affect other States?
In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or anyone it thinks proper, or upon any class or description of persons, yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.
It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And, for the same reason, it cannot introduce any person or description of persons who were not intended to be embraced in this new political family which the Constitution brought into existence, but were intended to be excluded from it.
This is another thing that I think most people today agree was repudiated by 14A, with language specifying that a qualified person is both a citizen of the US and a citizen of their State. At least in part. I haven't done a deep dive on the later history of this question and whether there are any weird cases that have survived. Back to the main story.
It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must inquire who, at that time, were recognised as the people or citizens of a State whose rights and liberties had been outraged by the English Government, and who declared their independence and assumed the powers of Government to defend their rights by force of arms.
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
In his justification for this, he calls them an
inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit
points to other laws treating them as property/merchandise, and says that they
show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma of the deepest degradation was fixed upon the whole race.
He claims, pretty boldly, that even the Declaration's sweeping language simply did not intend to include them. He makes a textual comparison between the Articles of Confederation and the Constitution. The Articles of Confederation had passages stating
"that the free inhabitants of each of the States, paupers, vagabonds, and fugitives from justice, excepted, should be entitled to all the privileges and immunities of free citizens in the several States."
and
"to agree upon the number of land forces to be raised, and to make requisitions from each State for its quota in proportion to the number of white inhabitants in such State, which requisition should be binding."
He acknowledges that the Constitution didn't use these words, but he thinks it has clauses that are similar enough that it just used a slightly different word to have the same meaning:
the word citizen was on that account substituted for the words free inhabitant. The word citizen excluded, and no doubt intended to exclude, foreigners who had not become citizens of some one of the States when the Constitution was adopted, and also every description of persons who were not fully recognised as citizens in the several States. [emphasis in original]
He points to the First Congress's naturalization law extending "to aliens being free white persons." He agrees that Congress could change this, but uses it as evidence for his claim that black people were understood to be excluded from the 'people' that related to the 'sovereignty':
Now the Constitution does not limit the power of Congress in this respect to white persons. And they may, if they think proper, authorize the naturalization of anyone, of any color, who was born under allegiance to another Government. But the language of the law above quoted shows that citizenship at that time was perfectly understood to be confined to the white race; and that they alone constituted the sovereignty in the Government.
There are a lot more details, and it's long, but I think we've got a taste of the basic issues and the general sense of what the Court was doing here. Taney begins to conclude this section with:
What the construction was at that time we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word "citizen" and the word "people."
I won't cover all of the nine opinions. Justice McLean dissents, with only a very brief section that I think is most relevant to our concerns:
There is no averment in this plea which shows or conduces to show an inability in the plaintiff to sue in the Circuit Court. It does not allege that the plaintiff had his domicil in any other State, nor that he is not a free man in Missouri. He is averred to have had a negro ancestry, but this does not show that he is not a citizen of Missouri within the meaning of the act of Congress authorizing him to sue in the Circuit Court. It has never been held necessary, to constitute a citizen within the act, that he should have the qualifications of an elector. Females and minors may sue in the Federal courts, and so may any individual who has a permanent domicil in the State under whose laws his rights are protected, and to which he owes allegiance.
Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term citizen is "a freeman." Being a freeman, and having his domicil in a State different from that of the defendant, he is a citizen within the act of Congress, and the courts of the Union are open to him.
This passage invokes allegiance, but it's kind of only using it as a sufficiency condition. Moreover, it just sort of states that birth "under our Constitution and laws" is sufficient, but doesn't really get into any of the details of where the contours are of that. However, it does bring to mind the question, "What did Chief Justice Taney do with all that 'allegiance' stuff from the prior cases we've looked at?"
I don't see a single cite in Taney's opinion to any of the cases we've looked at. Moreover, there are only three uses of the word "allegiance". Once is just talking about Congress' power to naturalize someone who was born under a foreign allegiance. The other two are in a section about the militia law:
Another of the early laws of which we have spoken is the first militia law, which was passed in 1792 at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every "free able-bodied white male citizen" shall be enrolled in the militia. The word white is evidently used to exclude the African race, and the word "citizen" to exclude unnaturalized foreigners, the latter forming no part of the sovereignty, owing it no allegiance, and therefore under no obligation to defend it. The African race, however, born in the country, did owe allegiance to the Government, whether they were slave or free, but it is repudiated, and rejected from the duties and obligations of citizenship in marked language.
Taney declares that they do owe allegiance by birth, but unlike in past cases, he thinks that's not enough. He thinks that if you didn't have enough of the duties and obligations of citizenship, you were excluded. As such, I have to say that in considering what Dred Scott did, and thinking about what things the Fourteenth Amendment may have repudiated in Dred Scott, the Petitioners have a point in saying:
Dred Scott departed from that traditional, allegiance-based view of citizenship.
This may not mean that 14A returned us to that, but I think it is true that Dred Scott departed from it, on its own terms.
Justice Curtis also dissented. He questions the claim that free Africans were uniformly not treated as citizens at the time of the founding.
At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.
He points to the Articles of Confederation, which say:
"The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States."
He's got a little legislative history that Congress rejected an amendment limiting it to white people, concluding that blacks could be citizens under the Articles of Confederation. He then asks:
Did the Constitution of the United States deprive them or their descendants of citizenship?
His opinion:
I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption, nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States.
He goes into detail about various possible places where one could try to find such a thing. I think I'll skip that detail.
Laying aside, then, the case of aliens, concerning which the Constitution of the United States has provided, and confining our view to free persons born within the several States, we find that the Constitution has recognised the general principle of public law that allegiance and citizenship depend on the place of birth;
I think that after this point, he is mostly "laying aside... the case of aliens", so I don't think we get much more out of Justice Curtis' dissent.
I haven't commented a lot at this point about how the current parties have portrayed the old cases, but I did mention that I felt Petitioners at least had a point about allegiance. I looked to see if Respondents, uh, responded to this claim. I didn't see that they did, at least not near any of their citations to Dred Scott. But it left me in a spot where I have to remark that I think Respondents did just mischaracterize a part of Justice Curtis' dissent. Respondents wrote:
In his Dred Scott dissent, Justice Curtis objected that the majority was departing from the longstanding common-law rule. He explained that “natural-born citizen” in Article II “was used in reference” to “the received general doctrine,” which was “in conformity with the common law, that free persons born” in the United States were “citizens of the several States.”
Notice the many interrupted quotation marks? That's an indication that something fishy is afoot. Here's the full paragraph:
The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been in conformity with the common law that free persons born within either of the colonies were subjects of the King that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects. [citations removed]
This is also the only section in any of the opinions that cite our old cases of Inglis and Shanks. The "received general doctrine" he's talking about was that folks born in the colonies and in the US at the time of the Declaration were British subjects, and that you needed to do the work of our prior cases to figure out which of them became citizens and how. They absolutely butchered this paragraph, and it's frankly shameful.
Munro v. Merchant (1858 and 1863)
Not SCOTUS. New York. Respondents cite this to shore up Lynch as being influential. The parties are fighting a mini battle over whether Lynch was influential. The reason why the 1858 case is cited at all is just because Petitioners apparently cited someone who said Lynch wasn't influential, and Respondents say that that guy only looked at Munro 1858, but that he should have looked at Munro 1863. Sigh.
The 1858 opinion was from the New York Supreme Court (which, I know, surprising from it's name, is not the highest court in the State; I think it might be the only state that is like this), and the 1863 opinion is on appeal from that court to the New York Court of Appeals (which is the highest court in the State).
In any event, another inheritance case. Guy born in NY to non-resident alien parents. Money quote for Respondents from 1858:
It is contended that the plaintiff is himself, an alien. He was born in this state of non-resident alien parents, his mother being here simply, it would appear, for the purpose of being confined. He now resides in this state, and is prima facie a citizen; but whether he is a citizen or not is not material, for he does not derive his title by inheritance, or by an act of law, but by purchase, he having acquired the right of the party to whom the premises were sold on execution, in the manner authorized by the statute;
So, I guess they just kinda state that he's probably a citizen, but I guess that's rebuttable, so maybe they don't even want the Full Schooner? I don't know, they immediately go on to say that it doesn't matter. How about 1863? Best money quote I can find:
In Lynch v. Clarke, the question was precisely as here, whether a child born in the city of Hew York of alien parents, during their temporary sojourn there, was a native born citizen or an alien; and the conclusion was, that being horn within the dominion and allegiance of the United States, he was a native born citizen, whatever was the situation of the parents at the time of the hirth. That case, if law, would seem to be decisive of the present question, But, admitting the plaintiff to be an alien, the cases already cited show that the terms “heirs or assigns,” in the 9th article of the treaty, is not to be confined to the immediate descendants, but is to be extended indefinitely till the title comes to a citizen. [citation removed]
I didn't think it could get weirder, but it gets weirder. Sure, they cite Lynch, but then they poke at it. "If law". Like, they're not sure that it's good or not. Not reaaaaaallly 100% that's the full-throated endorsement that Respondents want. I want to be clear, Lynch might totally have been good and correct law! But the words this court put on the page are not, in my mind, an effusive endorsement. In any event, this court seemed to think that it didn't actually matter, either, so whatever. Are we really getting anything out of all these state court opinions?
Ludlam v. Ludlam (1860 and 1863)
Not SCOTUS. New York. The briefs make some hay about this, so I guess I'll say something. As Respondents point out, this is a case of a foreign birth to a US citizen father, so it's not super on point. If there's anything to note about the facts, it's that 1) it appears that the US citizen father was intending to return to the US instead of staying abroad permanently, and 2) it appears that there wasn't a statute at that time governing this sort of case.
Again, the 1860 opinion was from the New York Supreme Court, and the 1863 opinion is on appeal from that court to the New York Court of Appeals.
This case is basically dueling with Lynch for the two current parties, both cases being out of New York, the prior being out of that weird-to-us Court of Chancery, and this one being after that court was folded into the rest of the system. Respondents love Lynch, as I mentioned. Petitioners love Ludlam. Like Lynch, there are a lot of words here, a lot of British Common Law. I'm again not going to cover most of it. The money quote for the Petitioners in the 1860 opinion is:
By the common law when a subject is traveling or sojourning abroad, either on the public business, or on lawful occasion of his own, with the express or implied, license and sanction of the sovereign, and with the intention of returning, as he continues under the protection of the sovereign power, so he retains the privileges and continues under the obligations of his allegiance, and his children, though born in a foreign country, are not born under foreign allegiance, and are an exception to the rule which makes the place of birth the test of citizenship.
Respondents respond that, on appeal, the NY Court of appeals "endorsed Lynch", with the money quote from the 1863 opinion being:
The same question is presented, therefore, in this respect, which arose in Lynch v. Clark, where it is, I think, very clearly shown that, in the absence of any statute, or any decisions of our own courts, State or National, on the subject, the question of citizenship can only be determined by reference to the English common law, which, at the time of the adoption of the Constitution of the United States, was, to a greater or less extent, recognized as the law of all the States by which that Constitution was adopted.
So, sure? It seems they were very into English Common Law. I don't think the NY Court of Appeals said that the NY Supreme Court was wrong. In fact, my brief read is that they actually agreed, thinking that the child was born with two allegiances. It talks through whether that's weird and how to think about it, and ultimately seems to conclude that the child should be able to grow up and make a choice of his own for which allegiance to hold to. Maybe some shades of Justice Thompson in Inglis.
Thirteenth Amendment, Civil Rights Act of 1866, and Fourteenth Amendment
Thirteenth Amendment
Ratified on December 6, 1865.
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Civil Rights Act of 1866
Enacted into law with two-thirds vote of both the House and Senate, over a Presidential veto, on April 9th, 1866.
An Act
To protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
There are nine other sections, and they provide further rights and rules, but the first bit is certainly the most important for this topic. The part most focused on is just the first part:
all persons born in the United States and not subject to any foreign power, excluding Indians not taxed
Lots of hay on what this means, doesn't mean, how it compares to 14A. You will find many citations to this lawmaker or that lawmaker, this commentary or that commentary, and on and on. I'm weirdly going to not remark much on all of that. I'm sure you can find your preferred historian and your preferred interpretive method, be it legislative history, original public meaning, what have you, and form an opinion on it that way. Feel free to just think that they're right. They probably are.
If I just look at the text, well, at this point, I know pretty well what it means to be born in the United States. I kinda feel like I know what it means to be subject (or not) to a foreign power, but there are super weird cases, for sure. I mean, maybe I don't know at all? There have been, like, "British subjects", for example. And also something stronger like a British foreign minister. And I don't really know much Indian law, so I probably know very little about what it means to be an Indian not taxed.
United States v. Rhodes (1866)
A newly appointed Supreme Court Justice was "riding circuit" in Kentucky, and handled this case. The only reason this case is brought up is because, again, Respondents are trying to shore up Lynch as influential. Lynch is mentioned once in this opinion. The paragraph says:
All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. [citations removed]
I removed the multiple citations, but yes, Lynch is in there. The end part sounds weird on first glance, but what I think he's doing here is starting off by just accepting that Dred Scott is still precedent, so slaves cannot be citizens, observing that the Thirteenth Amendment makes it so there are no slaves anymore, and then, the Civil Rights Act makes it certain that Nancy Talbot, an African born in the US (it makes no mention that I can see of whether she was ever a slave or born free), was indeed able to testify in a court matter like any other citizen. Along the way, it concludes that the Civil Rights Act is an acceptable use of Congress' Constitutional power.
Fourteenth Amendment
Ratified July 27, 1866.
Repeating the important part from above, because I imagine one would have to scroll quite far at this point.
Section 1
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.
Before we move on to the main event, remember what was mentioned above about the federalism concerns in Dred Scott? This says that folks are, indeed, citizens of the US and the State in which they reside. However, further questions about this will come up later.
Anyway, as always, feel free to consult your preferred historian to provide legislative history or original public meaning. I'm really just not qualified to dig into that, and even just trying to present the mountain of quotes the various briefs have dug up would be too much work on top of what I'm already doing. Not to mention trying to actually investigate the context of those quotes. I'm not sure it was even completely clear to me when I started this, but it should hopefully be clear to both of us by now that I'm mostly going to limit myself to just what the courts (preferably the Supreme Court) have said.
The Road to Wong Kim Ark
McKay v. Campbell (1871)
Not SCOTUS. Federal district court. I was going to be very cursory with this one on the dual grounds of generally being cursory with non-SCOTUS cases and also that the only citation is Respondents trying to further shore up Lynch, but the case is actually weird enough that I want to say a few things.
First, yes, it does cite Lynch, in a passage that is similar to Rhodes, but not having the slavery language.
The rule of the common law upon this subject is plain and well settled, both in England and America. Except in the case of children of ambassadors, who are in theory born upon the soil of the sovereign whom the parent represents, a child born in the allegiance of the king, is born his subject, without reference to the political status or condition of its parents. Birth and allegiance go together. [citations removed, but Lynch is in there]
Turns out a Canadian man (British subject, who was apparently 1/4 Indian) married a full Chinook Indian woman. She gave birth to William McKay. Where? In whose territory? Whose jurisdiction? It's weird! The father worked for the Hudson Bay Company, a British company, and they lived at Fort George, Oregon, which was a British-run fort. At this point, Oregon was not a State. Apparently, much of the area was considered useless and desolate, and the Brits/Americans had agreed that the territory would be "open and free". The opinion calls it "joint occupation", and says, "neither government can be considered as exercising general exclusive jurisdiction over the country and its inhabitants." He admits that the fort was "from the American standpoint, was at the date thereof, within the territory or realm of the United States", but complains that it was weird. Given the weirdness, he concludes:
Under this state of things as to the title and occupancy of the country, and while his alien father is in the service of a British corporation, then exercising in the territory, by authority of the British parliament, large municipal power, the plaintiff is born within the lines of a post then occupied by said corporation as a place of business and defense. This being so, in my judgment, he was not born in the allegiance of the United States, but in that of the British crown.
He thinks that the US didn't really have the normal type of jurisdiction over British subjects in the territory:
When, in 1818, the two governments entered into the treaty of “joint occupation,” as it has been aptly called, they thereby agreed that this then unsettled and unknown country, might be occupied by the people of both nations—that it should “be free and open” “to the vessels, citizens, and subjects of the two powers”—without either of them losing their nationality, changing their allegiance, or passing beyond the jurisdiction and protection of their separate governments. As to the British subject and his children born here, the country was for the time being British soil, while to the American citizen and his offspring it was in the same sense American soil. Neither government was entitled to exercise any authority over the citizens or subjects of the other, or to assert the power and rights of a sovereign over them, or their effects, within this particular territory. If, prior to 1846, the plaintiff had died intestate and without heirs, leaving a large amount of personal property in the territory, there is no doubt but that the British crown would have claimed the escheat without a word of objection from the government of the United States.
He thinks that jurisdiction needs to be "actual and exclusive":
When it is said that by the common law a person born of alien parents, and in the allegiance of the United States, is born a citizen thereof, it is necessarily understood that he is not only born on soil over which the United States has or claims jurisdiction, but that such jurisdiction for the time being is both actual and exclusive, so that such person is in fact born within the power, protection and obedience of the United States. Generally speaking, the various places in the world are claimed, or admitted for the time being, to be under the exclusive jurisdiction of some particular sovereign or government, so that a person born at any one of them is without doubt born in the allegiance of such particular sovereign or government. But that is not this case—which in this respect is a singular one. Its parallel has not been found in the books. The country of the plaintiff's birth was, at the time thereof, jointly occupied by the citizens and subjects of two governments in pursuance of a treaty to that effect. Under the circumstances, neither government can be considered as exercising general exclusive jurisdiction over the country and its inhabitants. It seems to me, that the only practical and just solution of the problem, is to consider the country for the time being, only to have been in the exclusive jurisdiction of each government as to its own citizens or subjects
"Its parallel has not been found in the books." Yeah, man! It's so weird! In any event, he basically just makes up a rule that each country only had exclusive jurisdiction of their own citizens/subjects in the territory at the time. He says that this situation could come up again, regarding disputed territories, and mentions some British Common Law on hostile occupations. But I guess since this one's not hostile, it's extra weird? I'm really going to stop quoting after this, but one more, because it's funny to see a pithy one-liner in a legal opinion this old:
Now, in 1823, the plaintiff's “place of birth”—Fort George—was no more within the obedience of the United States than is the Tower of London today.
One last note, though. Remember that Chinook mother? The judge acknowledges that the Indian tribes are "distinct and independent political communities" that he says don't typically get US citizenship, even if born in US territory. And then he's like (my words, for maximum comedy), 'Does he follow the father, becoming a Brit, or follow the mother, becoming a Chinook? Who bloody knows?' He doesn't have to answer that question, because as far as he's concerned, the only thing that matters for him is that William McKay is not a US citizen. Wild.
I really can't imagine that I'm going to lean on this case much in forming an overall opinion on the current case, but I found the whole thing kind of amusing, now that it's a hundred and fifty years old and no longer affecting any of the people involved.
Carlisle v. United States (1872)
Some Brits lived in Alabama during the Civil War. They manufactured and sold saltpeter to the Confederacy, which used it to make gunpowder. After the North won, these Brits were prosecuted for treason against the United States for this. But the President issued a proclamation pardoning everyone, and so the Brits wanted some property back that the Union had seized. The Court puts the question:
Such being the general effect of pardon and amnesty granted by the President, it only remains to consider whether the proclamation of December 25, 1868, embraces the claimants who were aliens domiciled in the country within its provisions.
I've read the rest of it a few times, and it sort of doesn't make sense to me? There's no limitation in the proclamation in any way regarding citizenship, alienage, residence, domicile, anything. Like, shouldn't they have just said that and been done? I don't know why they wrote all this other stuff, but they seemed to just include a section to confirm that they did owe temporary allegiance to the US and were guilty of treason.
The claimants were residents in the United States prior to the commencement of the rebellion. They so allege in their petition; they were therefore bound to obey all the laws of the country not immediately relating to citizenship during their sojourn in it, and they were equally amenable with citizens for any infraction of those laws. "The rights of sovereignty," says Wildman in his Institutes on International Law, "extend to all persons and things not privileged that are within the territory. They extend to all strangers therein, not only to those who are naturalized and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territories, and owe a temporary allegiance in return for that protection."
By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives. It may be an absolute and permanent obligation or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.
...but then yeah, they just say that the proclamation applies to "every person", so they get a pardon, too, and get their stuff back.
Slaughterhouse Cases (1872)
Another biggie that you've probably heard of. Similar caveats apply. It's also pretty long, with three dissents. It hits economic freedom issues, federalism issues, and how to read the Fourteenth Amendment. Much ink has been spilled about this case for the last hundred and fifty years. Plenty of modern folks think that the opinion of the Court is wrong. I'm probably not going to do it even an eighth thoroughly. In fact, I'm intentionally going to try to avoid going down any of the many rabbit holes, especially pathways of, "Well, if people think it's wrong, why do they think it's wrong, do they think it's all wrong, or just parts are wrong and parts are right?" That could be a whole 'nother post of its own.
The basics are that New Orleans didn't like having a bunch of slaughterhouses. They got the State of Louisiana to pretty much ban most them from the area, and gave a monopoly to a single company. So far, I haven't quoted the entirety of even Section 1 of the Fourteenth Amendment, so I guess I need to do that here:
Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The banned butchers invoked all three of the following clauses that we haven't yet addressed. They thought the ban violated their "priviliges or immunities"; they thought that they were being "deprive[d] of ... liberty, or property, without due process of law"; they thought they were being "den[ied] ... the equal protection of the laws".9 Each of these clauses has mounds upon mounds of precedent that has built up over the last century and a half, and there are doctrines upon doctrines out there now. But at the time, they didn't have any of that. This was only six years after 14A was ratified.
I'm really going to give this short shrift, because the basic idea that might matter for us is actually kind of straightforward. How should one read this text? Justice Miller writes the Opinion of the Court, and thinks that it should be read all with one purpose:
The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history, for in it is found the occasion and the necessity for recurring again to the great source of power in this country, the people of the States, for additional guarantees of human rights, additional powers to the Federal government; additional restraints upon those of the States. Fortunately, that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt.
Ok, what purpose is in that history?
The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation, culminated in the effort, on the part of most of the States in which slavery existed, to separate from the Federal government and to resist its authority. This constituted the war of the rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery.
In that struggle, slavery, as a, legalized social relation, perished. It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slavery, they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard-pressed in the contest, these men (for they proved themselves men in that terrible crisis) offered their services and were accepted by thousands to aid in suppressing the unlawful rebellion, slavery was at an end wherever the Federal government succeeded in that purpose. The proclamation of President Lincoln expressed an accomplished fact as to a large portion of the insurrectionary districts when he declared slavery abolished in them all. But the war being over, those who had succeeded in reestablishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored Union as one of its fundamental articles.
He discusses how he thinks 13A addresses this. Then, for 14A:
They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced.
These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the crisis of the rebellion, and who supposed that, by the thirteenth article of amendment, they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection until they ratified that article by a formal vote of their legislative bodies.
He also says that these were still not enough, so 15A followed to ensure the right to vote. Finally, his overall reading is that the point of these amendments was specifically regarding "the slave race":
We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.
He admits that the amendments do reach broader, for example banning slavery of Mexicans or Chinese if that were to have developed. But he's still trying to maintain a more purposivist interpretation. Getting to the core of our interests:
The first section of the fourteenth article to which our attention is more specially invited opens with a definition of citizenship -- not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided.
The messiness of being a citizen of the US versus a citizen of a State. He doesn't try to resolve this problem yet, but notes the history of Dred Scott as being the main purpose of the Citizenship Clause:
To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.
He reads the clause thusly:
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt.
In this purposivist frame, the point was to make black people citizens. He then has a single sentence about "subject to the jurisdiction thereof":
The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
That's it. That's all the analysis. It doesn't get into details. It doesn't really comport with what we've seen before, either, as it says that all "citizens or subjects of foreign States" are not entitled to birthright citizenship. I don't actually see much substantive discussion in the dissents on this point.10
Because that's basically it for our main event, I'll hit the majority's view of the federalism issue and just jump directly to the dissents. From Justice Miller's Opinion of the Court:
The next observation is more important in view of the arguments of counsel in the present case. It is that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.
From Justice Fields' dissent:
It [the first clause of the Fourteenth Amendment] recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry. A citizen of a State is now only a citizen of the United States residing in that State.
From Justice Bradley's dissent:
The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country, and that State citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen's place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen, and the whole power of the nation is pledged to sustain him in that right.
From Justice Swayne's dissent:
A citizen of a State is ipso facto a citizen of the United States. No one can be the former without being also the latter; but the latter, by losing his residence in one State without acquiring it in another, although he continues to be the latter, ceases for the time to be the former. ... There may thus be a double citizenship, each having some rights peculiar to itself.
They all seem to agree, more or less, on how this piece is meant to be read.
I'm going to skip the entirety of the rest of this case. Privileges and Immunities are fascinating and all, so maybe someone else will take inspiration from this post and do a deep dive on that topic, but I'm going to have to try to finish this before today's case is decided!
Mitchell v. United States, 88 U.S. 350 (1874)
Guy named Mitchell11 lived in Kentucky (a Northern state) for a long time. After the Civil War kicked off, he went down to the South, and uh, made a bunch of money? Acquired a bunch of cotton, at least. A stupidly expensive amount of cotton. When the Union Army rolled through, they confiscated it. Apparently, whether he can get his stuff back depends on whether he was "domiciled" in the North or the South when he bought the cotton. The details for why this matters is not obviously clear to me from the three sentences on the topic, but it doesn't matter for us, so I'm not going to figure it out. The result isn't all that unfamiliar to us, with a little more detail:
There is nothing in the record which tends to show that when he left Louisville, he did not intend to return, or that while in the South, he had any purpose to remain, or that when he returned to Louisville, he had any intent other than to live there as he had done before his departure. Domicile has been thus defined: "A residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time." This definition is approved by Phillimore in his work on the subject. By the term domicile, in its ordinary acceptation, is meant the place where a person lives and has his home. The place where a person lives is taken to be his domicile until facts adduced establish the contrary.
...
A domicile once acquired is presumed to continue until it is shown to have been changed. Where a change of domicile is alleged, the burden of proving it rests upon the person making the allegation. To constitute the new domicile, two things are indispensable: first, residence in the new locality, and second the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired, the old one remains. These principles are axiomatic in the law upon the subject.
When the claimant left Louisville it would have been illegal to take up his abode in the territory whither he was going. Such a purpose is not to be presumed. The presumption is the other way. To be established it must be proved. Among the circumstances usually relied upon to establish the animus manendi are: declarations of the party; the exercise of political rights; the payment of personal taxes; a house of residence, and a place of business. All these indicia are wanting in the case of the claimant.
There's not a lot to comment on here. Respondents only cite this to claim that if birthright citizenship depended on domicile, it would make citizenship "uncertain and factually contingent, as it would depend on the 'intention' of parents 'to remain' in the United States indefinitely. It doesn't seem like the most crucial of cites, but I guess it's interesting to know a little bit more about domicile?
Minor v. Happersett (1874)
This one is sort of a weird cite for the briefs. The case itself is about whether women can vote. The Court basically says (my words), 'Women can certainly be citizens, but that doesn't mean they have to be allowed to vote.' Okay? The sections that might be relevant are:
Before its adoption, the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several states, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community such as a nation is implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are in this connection reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.
This is a pretty concise statement of the "protection/allegiance theory". But Petitioners don't actually cite it for this bit. I believe they cite it for this:
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
That's kind of it. They say that it might be complicated, but they're not going to get into it.
Robertson v. Cease (1878)
"Diversity jurisdiction", I believe they call it. I've certainly heard about it casually, but never dug into the details. My basic understanding is that federal courts can hear some state law cases when the dispute is between citizens of different states (and some other conditions). Here, the question was whether the parties actually were citizens of different States. It was clear that Robertson was a citizen of Texas, but apparently the record only clearly showed that Henry Cease was a resident of Illinois. Robertson's lawyer tried a clever argument:
It was suggested [in oral argument] that a resident of one of the states is prima facie either a citizen of the United States or an alien -- if a citizen of the United States, and also a resident of one of the states, he is, by the terms of the Fourteenth Amendment, also a citizen of the state wherein he resides -- and if an alien, he was entitled in that capacity to sue in the federal court, without regard to residence in any particular state.
Apparently, if Cease was an alien, they have jurisdiction. But if he's not an alien, Robertson wanted them to infer that he must be a citizen of some form, and since he's residing in Illinois, he must be a citizen of Illinois. Justice Harlan, writing for the Court, says that they will not infer in this way. They need to affirmatively declare more. How much more?
Here the only fact averred or appearing from the record is that Cease was a resident of Illinois, and we are in effect asked, in support of the jurisdiction of the court below, to infer argumentatively from the mere allegation of "residence" that, if not an alien, he had a fixed permanent domicile in that state and was a native or naturalized citizen of the United States, and subject to the jurisdiction thereof. By such argumentative inferences, it is contended that we should ascertain the fact, vital to the jurisdiction of the court, of his citizenship in some state other than that in which the suit was brought. We perceive nothing in either the language or policy of the Fourteenth Amendment which requires or justifies us in holding that the bare averment of the residence of the parties is sufficient, prima facie, to show jurisdiction. The judgment must therefore be reversed upon the ground that it does not affirmatively appear from the record that the defendant in error was entitled to sue in the circuit court.
It's not entirely clear to me if Justice Harlan is rejecting the entire chain of possible hypotheticals or if he's saying that you still just need something more. I get why the Petitioners bring this up. It seems to perhaps be making a distinction between residence and domicile (which we've already seen), but it's still just not clear to me. If they had affirmed that he was domiciled in Illinois, would Harlan then have gone for a chain of hypotheticals that either he was an alien or he was a US citizen, and if he was a US citizen, then, since he was domiciled in Illinois, he was a citizen of Illinois? Or do they just need to actually affirm the whole thing? I don't know. I'm not really sure it matters for us.
Elk v. Wilkins (1884)
This is another case that you should just read. How to understand it is a major point of contention between the main briefs. Petitioners refer to it five times; Respondents nineteen times. It's also Indian Law, so I'm probably going to not understand every third sentence or so.
John Elk was born... sometime before the Civil Rights Act of 1866? The Court never says exactly when he was born, but the dissent's argument implies that he was born before it. Also, the impetus for the case is that John tried to vote in Nebraska in 1880, and the Court mentions that the law allows male citizens over 21 to vote, so presumably he was born before 1860.
John Elk was born... somewhere in the geographic territory of the United States? Wikipedia tells me that he was born on a reservation, but nowhere in the opinions is it stated either way. Neither the Opinion of the Court nor the dissent appear to care one way or the other.
John Elk was born... to two parents who were both members of one of the Indian tribes? The Opinion of the Court doesn't really specify; the dissent uses the plural "parents", so presumably, both of them were.
John Elk severed his relationship with the tribe and began to reside in Omaha... sometime before 1879? The opinions state that he had affirmed that he had done this at least one year before he tried to vote in 1880. It is not clear whether he did so before/after either the Civil Rights Act of 1866 or the ratification of the Fourteenth Amendment later that year. This isn't necessarily meaningful, either, but it may help us try to understand some of the reasoning of the opinions.
Ok, with all that, what do the Justices think about whether John Elk is a citizen of the US and/or Nebraska? Justice Gray writes the Opinion of the Court, and Justice Harlan writes for the two dissenters. Justice Gray observes the weird status of Indians:
Under the Constitution of the United States as originally established, "Indians not taxed" were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several states, and Congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the states of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states, but they were alien nations, distinct political communities, with whom the United States might and habitually did deal as they thought fit, either through treaties made by the President and Senate or through acts of Congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian. Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed by any state. General acts of Congress did not apply to Indians unless so expressed as to clearly manifest an intention to include them.
He points to special processes that were used for some of them to become citizens:
The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. They were never deemed citizens of the United States except under explicit provisions of treaty or statute to that effect either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens or authorizing individuals of particular tribes to become citizens on application to a court of the United States for naturalization and satisfactory proof of fitness for civilized life
Even though he had just said that Indian tribes weren't exactly foreign states, he proceeds as though they kinda are (it's weird, yo!):
But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.
The majority accepts that naturalization can occur, thinks that it hasn't here, and turns to the question of birth through 14A.
The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.
That is, the majority thinks that's not good enough to renounce your tribal allegiance after birth. You have to be in the right category at birth, which, I guess, presumably means that your parents had to sever their ties with the tribe? I don't know.
There's a bit about "Indians not taxed". A couple of AI prompts later, and I'm even more confused about the taxation status of Indians, even today (I considered a lengthy footnote on this, but ew). I don't think it super matters, but feel free to read.
The majority also notes that some tribes dwindled in numbers enough to become effectively dissolved; they don't really manage any of their own affairs anymore. Also, some tribes were apparently never recognized as tribes that were distinct political communities by the US. In those cases, I think the Court thinks that later children are then born to be US citizens?
The critical part to the majority is John's status at birth. The dissent, obviously, disagrees. Remember that I said that I didn't know whether John Elk had severed ties with the tribe before or after the Civil Rights Act/14A? The dissent certainly thinks that if someone had already severed ties enough to be taxed prior to the Civil Rights Act or severed ties enough to be "subject to the jurisdiction" of the US prior to the respective times of their enactment, then that individual should be a citizen. They say that getting this sort of case wrong is a reason to disagree with the majority:
according to the doctrines of the Court in this case -- if we do not wholly misapprehend the effect of its decision -- the plaintiff, if born while his parents were members of an Indian tribe, would not be embraced by the amendment even had he been at the time it was adopted, a permanent resident of one of the states, subject to taxation and in fact paying property and personal taxes, to the full extent required of the white race in the same state.
Continuing to poke at the majority:
Our brethren, it seems to us, construe the Fourteenth Amendment as if it read:
"All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the state in which they reside,"
whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States.
So, Justice Harlan, AFAICT, thinks that so long as a person is born in the territorial US, then at any later date, they can become subject to the complete jurisdiction of the US and become a citizen at that moment. He says that this rule wouldn't have impact to other cases:
This would not include the children born in this country of a foreign minister, for the reason that, under the fiction of extraterritoriality as recognized by international law, such minister, "though actually in a foreign country, is considered still to remain within the territory of his own state," and, consequently, he continues
"subject to the laws of his own country, both with respect to his personal status and his rights of property, and his children, though born in a foreign country, are considered as natives." [citation removed]
That is, he think someone could get concerned that the child of a foreign minister is technically born in the geographic US, so maybe later, they could just self-declare that they're becoming subject to the jurisdiction of the US (or maybe move back to the US on some grounds other than a diplomatic mission), and gain citizenship. But, he thinks the fiction, properly construed, is that such children weren't even "born in the US".
I don't know if I'll remember to come back to this, but I feel like one should work through the various other cases outlined in The Schooner Exchange and other early cases, because it's not immediately clear how many other cases there might be of people technically born in the US, but not "subject to the jurisdiction thereof", whether they all have sufficiently similar fiction, or whether there might be other concerns about someone being able to later self-declare that they wanted to become subject to the jurisdiction, and thus, become a citizen.
Lamar v. Micou (1884)
This case has way too many parts to be worth describing, especially since it's referred to only once for one small argument in Petitioners' brief. It's talking about what the proper domicile State is for an infant, and it gets extra complicated, because there's a guardian appointed for this infant. Civil War shenanigans happened, and it's a case where it apparently matters where the proper domicile of the infant was.
Probably the most relevant section for what the Petitioners are going for is:
An infant cannot change his own domicile. As infants have the domicile of their father, he may change their domicile by changing his own, and after his death, the mother, while she remains a widow, may likewise, by changing her domicile, change the domicile of the infants, the domicile of the children in either case following the independent domicile of their parent. But when the widow, by marrying again, acquires the domicile of a second husband, she does not, by taking her children by the first husband to live with her there, make the domicile which she derives from the second husband their domicile, and they retain the domicile which they had, before her second marriage, acquired from her or from their father. [citations removed]
That's, uh, weird, but I guess, okay? It gets weirder when you consider adding in a guardian. I guess read if you're interested, but I'm going to move on.
In Re Look Tin Sing (1884)
Justice Field riding circuit in California, not full SCOTUS. Child born in California to Chinese parents who are subjects of the emperor of China, but have lived in California for 20 years, not on any diplomatic mission. Kid's a US citizen.
I'm not going to cover this in detail. Respondents point out that it cites Lynch, which they're always trying to bolster. And it comes to a similar conclusion to a case that the full Court is going to address in just a few short years. I'm going to spend time on that one and just leave this one here if you want to read it.
United States v. Kagama (1886)
Indian Law, and only a minor point in Petitioner's brief, which is really still trying to fight about Elk, I think, so I won't spend much time on it. In fact, just the conclusions.
The US can make laws and punish crimes they've defined for Indians on reservations. They are, in this sense of "jurisdiction", within the jurisdiction of the United States. The States, themselves, cannot, even if the reservation is otherwise within their territory. Apparently, allegiance/protection has something to do with it? Money quote:
These Indian tribes are the wards of the nation. They are communities dependent on the United States -- dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power.
They trace the allegiance bit to a treaty in this case:
The Indian reservation in the case before us is land bought by the United States from Mexico by the treaty of Guadaloupe Hidalgo, and the whole of California, with the allegiance of its inhabitants, many of whom were Indians, was transferred by that treaty to the United States.
I guess I'm not sure about the general case, if they didn't have a treaty to point to.
This case made me realize that I had missed something in Elk. In Kagama, they say that Indians do owe some allegiance to the US. In Elk, the Court wasn't entirely clear on this point. They just said that Indians didn't owe "direct and immediate" allegiance. I guess I skipped over one quote they had from a district court that implied that Indians were not born in allegiance to the US. Whereas Justice Harlan's dissent said:
they are under the protection of the laws, and may be said to owe a qualified allegiance to the government.
So, I guess, maybe the Court in Kagama is moving a bit toward Justice Harlan's position that they perhaps have a "qualified" allegiance? Perhaps they still think it's not enough for citizenship, but there's clearly some tension here.
Town of New Hartford v. Town of Canaan (1886)
Connecticut, not SCOTUS. Not a lot here. Respondents use it to again bolster Lynch. It cites Lynch and a few other cases we've seen (McKay, Munro, the Ludlams). There's a weird twist in that some local/state law apparently cares if you're a "settled inhabitant". Kid born to a foreign father in Massachusetts. I think the court thinks that this was probably enough to make him a citizen, but it maybe kinda says that perhaps he got to choose his allegiance when he reached the age of majority? I don't know.
Yick Wo v. Hopkins (1886)
A weak cite from Respondents. They use this just to say that some of the words in 14A apply without regard to race/color/nationality. But, uh, which words? The Court says:
The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:
"Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws.
I'm not going to talk any more about the details of this case. Instead, I'll use this to talk about 14A and another one of the issues present. The due process/equal protection clauses use the phrase "any person". This is obviously quite broad, and potentially broader than other clauses. The equal protection clause uses the phrase "within its jurisdiction". One of the questions is whether there is any daylight between "within its jurisdiction" and "subject to the jurisdiction thereof". This may be complicated by the fact that the due process/equal protection clauses are talking about the States. Does that matter? I don't know. But this is one of the things that are in contention for some arguments.
Mali v. Keeper of the Common Jail (“Wildenhus’ Case”, 1887)
Belgian merchant ship docked in Jersey. Couple o' Belgian crewmembers got in a fight on board. One ended up dead. Can US courts exert jurisdiction? The Court wants the Full Schooner:
It is part of the law of civillized nations that, when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless, by treaty or otherwise, the two countries have come to some different understanding or agreement; for, as was said by Chief Justice MARSHALL in The Exchange: 'It would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such * * * merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.' [citation removed]
They say that the Full Schooner can be excepted by treaty, but they take a look at the treaty with Belgium and don't find anything there.
Ex parte Chin King (1888)
Pretty much just the same as Look Tin Sing? Also Justice Field riding circuit, but in Oregon now. For the same reasons, I'm just not going to say anything more.
Cunningham v. Neagle (1890)
Wild case with a wild story. Somebody tried to attack Justice Field while he was traveling on circuit (the one we've talked about). His US Deputy Marshall shot and killed the guy. Apparently, a California sheriff arrested the Marshall?! His case made it all the way up to the Supreme Court. Obviously, Justice Field did not take part in this case.
Wait, you thought that was the wild story? Nah, man. Both the Opinion of the Court and the dissent are talking about the protection that is provided by the US to people with allegiance. And they both tell the same story that is apparently unrelated to this altercation involving Justice Field.
Some Hungarian who wasn't fully naturalized to the US yet, but apparently "had in due form of law made his declaration of intention to become a citizen" and "had with him his naturalization papers" was seized and held on an Austrian ship. The captain of an American warship in the area demanded that he be turned over and "train[ed] his guns upon the Austrian vessel".
Apparently, there were some diplomatic negotiations, and dude was at least turned over to the French, and I guess, eventually the US. This is just, like, a random wild story thrown into these opinions. I guess it must have been big news not too long prior. I guess the reason they mention it is to ask whether there is any legislation supporting the act of the government. There doesn't appear to be any, and so I guess that's where they disagree on whether these sorts of government acts are justified.
I'm not really sure why this matters. I guess the gov't is allowed to protect not-quite-yet nationalized folks. I don't think anyone thinks the gov't is required to. I don't know if Some Hungarian was an important guy or not. I don't know if that Navy Captain would have done the same thing if he was a rando, not important guy. Really not sure quite how it fits into the current arguments about allegiance/protection. But cool story, bro.
Lau Ow Bew v. United States (1892)
Chinese guy lived in and was domiciled (intending to stay permanently, as we've seen) in the US. Took a temporary trip back to China. There was some statute requiring that he have a certificate to re-enter. I'm not going to bother with details, since again, our main event is coming (if you don't know, then you'll know hopefully soon). Both parties today cite this and accept that the gov't can/does give some additional rights to domiciled aliens. Money quote:
By general international law, foreigners who have become domiciled in a country other than their own acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country, and no restriction on the footing upon which such person stand by reason of their domicile of choice, or commercial domicile, is to be presumed, while, by our treaty with China, Chinese merchants domiciled in the United States have, and are entitled to exercise, the right of free egress and ingress, and all other rights, privileges, and immunities enjoyed in this country by the citizens or subjects of the "most favored nation."
Of course, the parties today disagree on whether this sort of thing matters for 14A purposes. There was a treaty, too.
Fong Yue Ting v. United States (1893)
Some Chinese guys again; also domiciled in the US; this really is a pattern during this period of time as we're leading up to the main event. Apparently, Congress passed a law that all Chinese laborers in the US have to apply for a certificate to stay within a year, otherwise, they could be deported. They delegated the ability to do the deportations to the President and Executive Branch. There was no judicial trial required to deport. The main aspect of this case was whether they could invoke the Due Process clause, which if you remember, has wording that applies to people more broadly than the Citizenship Clause. There was also that treaty involved and stuff.
While all that's an interesting question in it's own right, the parties today seem to just be dueling about a paragraph or two. From Justice Gray's Opinion for the Court:
By the law of nations, doubtless, aliens residing in a country with the intention of making it a permanent place of abode acquire, in one sense, a domicile there, and, while they are permitted by the nation to retain such a residence and domicile, are subject to its laws and may invoke its protection against other nations. This is recognized by those publicists who, as has been seen, maintain in the strongest terms the right of the nation to expel any or all aliens at its pleasure. [citations removed]
One of those citations that I removed was to "Koszta's Case". Turns out, that's that wild story about the Austrian guy and the Navy Captain. I actually looked it up this time, trying to make sure it was the same thing, and it does indeed turn out that that guy was a big deal and not a nobody.
Petitioners talk about how domicile is important enough to allow you to "invoke [US] protection against other nations". I didn't look up the several other cites for the above quoted paragraph, but Respondents narrow in on "Koszta's Case", just saying that it was some remarkable event of a domiciled and almost-naturalized guy being protected overseas. They assert that it has nothing to do with the Citizenship Clause. I mean, I don't really know what they're fighting about. I kinda know; Petitioners are saying that domicile is important and gets you protection/allegiance; Respondents are I guess saying that it's just a weird situation and not relevant. Petitioners probably like the rest of the dicta in the above-quoted paragraph.
Maybe a nice paragraph from Justice Field's dissent trying to be as inclusive toward domiciled aliens as possible?
Aliens from countries at peace with us, domiciled within our country by its consent, are entitled to all the guaranties for the protection of their persons and property which are secured to native-born citizens. The moment any human being from a country at peace with us comes within the jurisdiction of the United States, with their consent -- and such consent will always be implied when not expressly withheld, and, in the case of the Chinese laborers before us, was, in terms, given by the treaty referred to -- he becomes subject to all their laws, is amenable to their punishment, and entitled to their protection. Arbitrary and despotic power can no more be exercised over them, with reference to their persons and property, than over the persons and property of native-born citizens.
I mean, I guess he also thinks that they can invoke some sort of protection, too? But is that just "protection of the laws" or some sort of allegiance/protection? I don't know.
O'Brien v. Benny (1895)
I can't find the full text of this. Partial text here, but I'm not going to make an account. Not SCOTUS. Supreme Court of New Jersey, which Wikipedia tells me was like NY in that this was actually a lower state court at the time. Petitioners quote it. From Petitioners' brief:
...the Citizenship Clause does not confer citizenship upon “those born in this country of foreign parents who are temporarily traveling here.” [citation to Benny]
and:
“those born in this country of foreign parents who are temporarily traveling here” are not U.S. citizens because “[s]uch children are, in theory, born within the allegiance of [a foreign] sovereign.” [citation to Benny]
Respondents say that it's dicta and that Benny wasn't about children of temporary visitors. From just what I can see in that link to the case, Respondents seem correct that it's probably dicta:
His parents came from Scotland to this country in 1855, and have continued to reside here since that time. His father declared his intention to become a citizen in December, 1893, but has not been naturalized. Allan Benny has voted at every election held in Bayonne since he became 21 years of age. The question presented is whether a person born in this country of alien parents, who, prior to his birth, had their domicile here, is a citizen of the United States.
Wong Wing v. United States (1896)
A companion to Fong Yue Ting, only this time, instead of just being deported, the government wanted to imprison Chinese laborers who didn't have a certificate, including hard labor as a punishment. They wanted to do this without a jury trial. The whole Court disagreed; you have to have a jury trial.12
Respondents quote this by pulling two fragments. First, just the acknowledgement that the Chinese laborers were "unlawfully within the United States". Second, they take
Applying this reasoning to the Fifth and Sixth Amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.
and pull out that unlawfully present folks are
"entitled to the protection" of the Constitution
I think this one is a bit sneaky and shameful. It's been pretty clear so far that different parts of the Constitution might apply to different people, and they're definitely implying otherwise. There's no other cite to this case by either party, so this was just unnecessary.
Maraneck v. Sch. Dist. No. 40, Hous. Cnty.
Not SCOTUS. Minnesota Supreme Court, which seems to have been the highest court in Minnesota. I can't find the full text. I really don't care. It's just yet another one that was thrown in to shore up Lynch. It probably cited Lynch; I don't know. The syllabus, not the opinion, says:
Children born within the United States of foreign parents residing therein, and not engaged in any diplomatic or official capacity under a foreign ruler, such children continuing to reside in this country, are citizens of the United States and of the state in which they reside, within the provisions of the first section of the fourteenth amendment to the federal constitution.
At this point, you can decide for yourself if any of the qualifiers in there might possibly matter or not.
United States v. Wong Kim Ark (1898)
The biggest of biggies. For many people, at least in the last three quarters of a decade since I first paid attention to this topic and wrote that comment on SSC, this is the case. Many people think that this case just already answered the question.
I did just ask AI, and it says that the Supreme Court can summarily affirm the court below. Plausibly, the Court could have done that here, today. It says that they can also include a little justification statement. So, I guess, they could have just summarily affirmed and written, "The court below correctly applies Wong Kim Ark, which settles this question." The AI gives a caveat, though, that, "Summary affirmances bind the parties but carry less precedential weight than argued decisions." Maybe that's true. Maybe the Court just wanted to present a tour de force opinion, visibly slapping down the President on one of his signature policy issues. Maybe there are members of the Court who aren't so sure it's quite as easy as pressing the WKA button. Maybe they think it's better to have a 9-0 opinion or a tour de force opinion over a dissent on the merits than allow a dissent on summary affirmance13 that could be shaped more as, "There's a question here that merits full consideration," rather than, "The outcome should be the other way round." The mind wonders.
In Wong Kim Ark, the Court was 7-2. The opinions are long. You should just read it anyway. Half the point of this entire post is just to develop enough of the history to prepare someone to be able to read WKA on their own and form their own opinions as to what it did. You may have already read more here than you would read if you read the entire case (I haven't checked). Just go read it.
In fact, as we will see, large portions of the opinion are directly quoting from cases we've already seen. As such, it's useful to have the background. In any event, lets dive in to the Opinion of the Court, written by Justice Gray. He states the facts of the case:
The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China, and during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to-wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence, and neither he nor his parents acting for him ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him therefrom.
Wong took a couple temporary trips to China. On the most recent one, the gov't attempted to deny him entry, claiming that he was not a US citizen. The question of this case?
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution,
He cites 14A, talks a bit about the history of the Constitution and 14A, cites Minor and some other cases for some interpretive principles. He says that common law is important. Then, he talks a fair amount about British Common Law. I haven't discussed this much, so just read it and learn. He says that the Constituion, as originally established, followed these principles. He cites The Charming Betsy, which neither party cited today and thus we haven't covered, so read it? He cites Inglis, Shanks, some more British Common Law. He jumps forward to Dred Scott to talk about the original Constitutional language of "natural-born citizen". He cites Rhodes, as well as a Massachusetts Supreme Court decision and a North Carolina Supreme Court decision we haven't looked at. He cites Lynch and some opinions of the Secretary of State/Attorney General. Other commentaries. He even talks about Roman and French law! We haven't even considered that! But he thinks that it's unclear enough that there's not conclusive evidence in looking at international law:
There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.
He acknowledges that the nation can set its own rules, in any event. The US has passed various statutes. He also compares some British statutes. Here, Congress at least has the power "to establish an uniform rule of naturalization," and they've done so, particularly regarding foreign births to US citizen parents. They didn't do it immediately; they didn't have to do it; the US doesn't inherently recognize citizenship by blood.
Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.
He reviews the Civil Rights Act of 1866 and 14A.
As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption.
He says that its "main" purpose was to establish citizen of freed blacks. He cites Dred Scott, The Slaughterhouse Cases, Elk, and some others that we haven't covered. He mentions foreign ministers, saying that it's important that they're official:
consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as entrusted with authority to represent their sovereign in his intercourse with foreign States or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside.
He cites Minor again, this time for remarks on allegiance/protection. He turns to specific cases regarding the phrase "subject to the jurisdiction thereof":
The only adjudication that has been made by this court upon the meaning of the clause, "and subject to the jurisdiction thereof," in the leading provision of the Fourteenth Amendment is Elk v. Wilkins...
Which we've covered, to note that it wanted "complete" subjection to "political jurisdiction" and an owing of "direct and immediate allegiance". He notes that this still comports with the "Indians not taxed" language in the Civil Rights Act. He says that this decision was very specific:
The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.
He states:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
with cites to Inglis and British law. He says:
The principles upon which each of those exceptions rests were long ago distinctly stated by this court.
He cites US v. Rice, which we've covered on British-occupied territory. He then writes:
In the great case of The 11 U. S. 7 Cranch...
"The 11 U.S. 7 Cranch" here means The Schooner Exchange. I don't know if there's an error in the text on this particular website, and it actually said the whole phrase, but there's a link, and you can see that the same descriptor is used.
...the grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country were set forth by Chief Justice Marshall in a clear and powerful train of reasoning, of which it will be sufficient, for our present purpose, to give little more than the outlines. The opinion did not touch upon the anomalous casts of the Indian tribes, the true relation of which to the United States was not directly brought before this court until some years afterwards in Cherokee Nation v. Georgia; nor upon the case of a suspension of the sovereignty of the United States over part of their territory by reason of a hostile occupation, such as was also afterwards presented in United States v. Rice, above cited. But, in all other respects, it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof.
That is, he seems to think that The Schooner Exchange did it all. He cites this case extensively. Chief Justice Marshall did it all. He wants the Full Schooner:
In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that, upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war, and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found.
He then reviews the naturalization statutes, for the proposition that aliens residing in the US are "under the jurisdiction", while US parents residing abroad are "out of the jurisdiction".
The words "in the United States, and subject to the jurisdiction thereof" in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words "within the limits and under the jurisdiction of the United States," and the converse of the words "out of the limits and jurisdiction of the United States" as habitually used in the naturalization acts. This presumption is confirmed by the use of the word "jurisdiction" in the last clause of the same section of the Fourteenth Amendment, which forbids any State to "deny to any person within its jurisdiction the equal protection of the laws." It is impossible to construe the words "subject to the jurisdiction thereof" in the opening sentence, as less comprehensive than the words "within its jurisdiction" in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."
Remember that there was a question about whether there was any daylight between "subject to the jurisdiction" and "within the jurisdiction"? He definitely thinks that there is no daylight between them. He wants the Full Schooner.
He returns to the Civil Rights Act:
it can hardly be doubted that the words of that act, "not subject to any foreign power," were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright, or, for instance, for the first time in our history, to deny the right of citizenship to native-born children of foreign white parents not in the diplomatic service of their own country nor in hostile occupation of part of our territory.
And then says that if there was any doubt, 14A made it clear with the "subject to the jurisdiction" language. He cites an Attorney General opinion, a US ambassador, other gov't officials, all on the topic of how a statute provided citizenship to children of US parents abroad. He cites Benny14, and actually gives us a full quote from that opinion. Since I didn't have the text and full quotes above, I'll just include here what Justice Gray quoted from it:
The object of the Fourteenth Amendment, as is well known, was to confer upon the colored race the right of citizenship. It, however, gave to the colored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races, and unless the general rule, that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the language, 'all persons born in the United States, and subject to the jurisdiction thereof,' was intended to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race.
He starts to wrap up:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle." It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides... [citation removed]
He cites a Secretary of State report for the final point of that quote.
He turns to say that even if the Executive and Legislative branches want to do something that the Judiciary thinks is contrary to the Constitution, the Judiciary can take their own view of the Constitution. He cites Yick Wo, Law Ow Bew, Fong Yue Ting, Lem Moon Sing, and Wong Wing, giving some lengthy quotes. He gives some legislative history, indicating that Chinese people are not excluded in every way, even though the Chinese Exclusion Act can do something things within the bounds of the Constitution.
It kind of goes on about naturalization and birth, and how there's nothing really with respect to race. I'm not going to quote this heavily; just read it. He finally comes to a conclusion:
Upon the facts agreed in this case, the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.
He says that Wong never did anything to renounce it. Could his parents have?
Whether any act of himself or of his parents during his minority could have the same effect is at least doubtful. But it would be out of place to pursue that inquiry, inasmuch as it is expressly agreed that his residence has always been in the United States, and not elsewhere; that each of his temporary visits to China, the one for some months when he was about seventeen years old, and the other for something like a year about the time of his coming of age, was made with the intention of returning, and was followed by his actual return, to the United States, and
"that said Wong Kim Ark has not, either by himself or his parents acting for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom."
And finally:
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
Whew. That was a lot. You did read the whole thing, yes? If not, go read it.
There is a dissent by Chief Justice Fuller, joined by Justice Harlan. I won't cover it in as much detail. There's many of the same cases. Plenty of British law, but he says that the US has rejected other aspects of British law regarding some aspects of citizenship/subjecthood, such as "indissoluble allegiance".
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.
Concerning temporary/permanent, he says:
a different view as to the effect of permanent abode on nationality has been expressed in this country.
quoting a non-case Justice Story commentary. He says:
Undoubtedly all persons born in a country are presumptively citizens thereof, but the presumption is not irrebuttable.
He pokes on the "not subject to any foreign power" phrase of the Civil Rights Act:
All such persons [born in the US] are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that nevertheless they may be subject to the political jurisdiction of a foreign government.
He even says that the words "not subject to any foreign power" would have been superfluous of they only covered foreign ministers/invading armies:
If the act of 1866 had not contained the words, "and not subject to any foreign power," the children neither of public ministers nor of aliens in territory in hostile occupation would have been included within its terms on any proper construction, for their birth would not have subjected them to ties of allegiance, whether local and temporary or general and permanent.
He thinks the purpose was to get at temporary allegiance:
But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanent allegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would.
And it was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted.
The dissent thinks that there's no daylight between the Civil Rights Act and 14A:
The act was passed and the amendment proposed by the same Congress, and it is not open to reasonable doubt that the words "subject to the jurisdiction thereof" in the amendment were used as synonymous with the words "and not subject to any foreign power" of the act.
He focuses on the "completely subject" to "political jurisdiction":
To be "completely subject" to the political jurisdiction of the United States is to be in no respect or degree subject to the political jurisdiction of any other government.
He talks in a few places as to whether dual allegiance can even happen or what it would look like. He's pretty negative on it. There's some business about treaties, some that exist, some hypothetical. He thinks China wants the children of Chinese subjects in the US to remain Chinese subjects.
In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.
Chief Justice Fuller definitely doesn't want the Full Schooner, but he doesn't want the children of domiciled aliens to have US citizenship automatically, either.
For today's case, neither party is asking the Court to overturn WKA. There is at least one amicus brief that does ask for that, but both parties say they're fine with WKA. They are primarily fighting over what WKA did and meant. Is it really just about domiciled aliens? Does it really stand for the Full Schooner in the Citizenship Clause? I think that's about all I'll say on WKA except, again, if you've made it this far and haven't read it, go read it. Forming an opinion about what you think the Court did in WKA is a major component of coming to a sense for what you may think about today's case.
The Last Hundred and Thirty Years
In the years of our first major section, Petitioners and Respondents cited 17 cases. In the second, 23. There are 70 cases cited since Wong Kim Ark.
I kept a little, very minor, secret up to this point. I didn't cover every case that was cited in a party brief. I've skipped a few on grounds that they're not really relevant to the citizenship question. They might be of the type, "We're citing this for a general principle of how to interpret law." An example like this from the seventy modern cases is that Respondents cite Bostock, basically to just say that original public meaning interpretation of statutes is a thing. I don't need to cover that. I'm not going to cover that. I'm going to skip it. I'm likely going to skip many, many more cases from the last hundred years on grounds like this.
Chin Bak Kan v. United States (1902)
Chin Bak Kan was arrested for being unlawfully present in the US under the Geary Act, which extended the Chinese Exclusion Act. He claimed he was a US citizen. The Act allowed the case to be before a "justice, judge, or commissioner of a court". The claim was that the case could not be within the jurisdiction of a "commissioner", since there was an assertion of citizenship. Chief Justice Fuller (remember, in dissent in WKA) had the Opinion of the Court. Petitioners today care about the way he described the holding of WKA:
But it is argued that the commissioner had no jurisdiction to act because the claim of citizenship was made. The ruling in United States v. Wong Kim Ark, was to this effect:
"A child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States."
It is impossible for us to hold that it is not competent for Congress to empower a United States commissioner to determine the various facts on which citizenship depends under that decision. [citation removed]
That's kinda it. It's a direct quote from WKA. Not sure we learn much more than that Chief Justice Fuller acknowledged that he lost in WKA and that WKA was precedent.
Turner v. Williams, (1904)
John Turner was an anarchist who entered the US. Apparently, the law made it illegal for anarchists to enter. He was arrested and was going to be deported. He brought a claim that he was not given sufficient due process/equal protection, and that the First Amendment made it unconstitutional for a law to exclude people based on being an anarchist. There are some details here, but I'll cut to the chase. Chief Justice Fuller again with the Opinion of the Court:
But it is said that the act violates the First Amendment, which prohibits the passage of any law
"respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the government for a redress of grievances."
We are at a loss to understand in what way the act is obnoxious to this objection. It has no reference to an establishment of religion, nor does it prohibit the free exercise thereof; nor abridge the freedom of speech or of the press; nor the right of the people to assemble and petition the government for a redress of grievances. It is, of course, true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled, he is in fact cut off from worshipping or speaking or publishing or petitioning in the country; but that is merely because of his exclusion therefrom. He does not become one of the people to whom these things are secured by our Constitution by an attempt to enter, forbidden by law. To appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.
Petitioners today want to pull on the language of how you do not become one of the "people" of the Constitution if you enter illegally.
Kwock Jan Fat v. White (1920)
Chinese guy was investigated, because the gov't thought that he was in the US illegally. He says he was born in the US as a citizen. Oh no! The investigators think deception is afoot, and that somebody is claiming to be somebody else. Surely, some investigation should be able to sort this out, but the actual investigation that took place was "manifestly unfair", and they needed to do better.
The only reason this is cited (again by Petitioners) is for the portrayal of WKA:
It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. [citing WKA]
Winton v. Amos (1921)
Indian Law. Super complicated. I don't understand it. Has something to do with determining whether a guy is actually part of a tribe or not, which sounds horribly complicated. Apparently, Mississippi made some Choctaws citizens of the State, but also some still citizens of the Choctaw Nation? Some of them are both?
the Mississippi Choctaws were entitled to remain in Mississippi as United States citizens and still retain the rights of a Choctaw citizen, except as to a participation in the annuity.
Petitioners pull from one part:
It is thoroughly established that Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property.
The guardianship arises from their condition of tutelage or dependency, and it rests with Congress to determine when the relationship shall cease, the mere grant of rights of citizenship not being sufficient to terminate it.
I honestly don't know whether they're talking about "US citizenship" or "Choctaw Nation citizenship" here... and I kind of don't know that I care to spend the time to try to figure it out? Indians are weird, yo. I get that Petitioners are again trying to argue that Congress has plenty of "jurisdiction" over them, but yeah. So complicated.
United States v. Manzi (1928)
The Court very thankfully tells us everything important right up front:
Aniello Manzi filed his declaration of intention to become a citizen of the United States October 15, 1913. He died December 19, 1914. On October 4, 1924, his widow Amalia, respondent herein, relying upon her husband's declaration, asked for citizenship.
It was granted. Oh no! Someone in the gov't objected that the law said that she had to ask within seven years, and she was too late. The US tried to cancel the certificate. Turns out that since there's no exception in the law for widows, she loses. Petitioners pull this quote:
Citizenship is a high privilege, and when doubts exist concerning a grant of it, generally, at least, they should be resolved in favor of the United States and against the claimant.
Nationality Act of 1940
Congress passed this Act, declaring some folks statutorily citizens at birth, some procedures for naturalization, and some for loss of nationality. Neither party cites naturalization statutes prior to this one. A little AI prompting, and there were "Naturalization Acts" in 1790, 1795, 1798, 1802, and 1870, with tweaks along the way.
It was in 1940, though, that the statute used the same phrase as 14A:
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
It appears that the 1870 one didn't include this; it mostly just covered other things. There are certainly plenty of other things in this statute, and plenty of folks will make arguments about how one is supposed to interpret the narrow words here or the statute as a whole.
I'm not going to get into that debate. I'll just note that this is a major contention and a possible off-ramp for the Court. Plenty of briefs are arguing that the Court can say something like, "We don't have to figure out what 14A means, because by the time 1940 rolled around, those same words had some different/additional/whatever meaning, and at the very least, all these folks with possibly hard Constitutional cases have citizenship by this statute."
Ex parte, Quirin (1942)
This was a famous WWII case. Eight German saboteurs arrested in the US. All were born in Germany, though one had a claim of US citizenship, which the Court mentioned but then ignored:
All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority, and that he has not since lost his citizenship. The Government, however, takes the position that, on attaining his majority he elected to maintain German allegiance and citizenship, or in any case that he has, by his conduct, renounced or abandoned his United States citizenship. For reasons presently to be stated we do not find it necessary to resolve these contentions. [citations removed]
Why?
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid, guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused. [citations removed]
They were being tried by a military commission. I guess the Court said that this was okay?
There are probably tough questions here, and today's briefs don't really get into them. Petitioners say that Respondents' view of "subject to the jurisdiction thereof" can't explain the exception for "children born of alien enemies in hostile occupation", pointing out that alien enemies present in the country are subject to trial and punishment for war crimes. Respondents say that this case is just irrelevant to that exception, since there wasn't a "hostile occupation". Just some random saboteurs.
My first impression is that both briefs are kind of beside the point, because there is an actually interesting question about what would happen if a saboteur like this had a child in the US? Make it so the birth happens after they're clearly identified as being a saboteur, "alien enemy", and "enemy belligerent". Ex parte Quirin certainly doesn't answer this question, because it's not even on the table for them. Does it matter whether the actions rise to the level of something like territorial control for being a "hostile occupation"? These guys "received instructions in Germany from an officer of the German High Command", had "training at a sabotage school", and were paid for it all. Does it matter whether they snuck in to the US in secret, evading immigration, or whether they entered legally with an "implied license", before it was discovered that they were "enemy belligerents"? I don't know! But the mind wonders.
Hirabayashi v. United States (1943)
Japanese guy, no first name given. US citizen of Japanese ancestry, placed in an internment camp. He violated a curfew. No talk of him actually being an "enemy belligerent" or anything. The main part of this case is the Constitutionality of the curfew order, and whether it violates due process rights of US citizens.
There's not a lot here for us. Respondents pull from this bit:
At a time of threatened Japanese attack upon this country, the nature of our inhabitants' attachments to the Japanese enemy was consequently a matter of grave concern. Of the 126,000 persons of Japanese descent in the United States, citizens and non-citizens, approximately 112,000 resided in California, Oregon and Washington at the time of the adoption of the military regulations. Of these, approximately two-thirds are citizens because born [sic] in the United States.
And maybe:
Congress and the Executive, including the military commander, could have attributed special significance, in its bearing on the loyalties of persons of Japanese descent, to the maintenance by Japan of its system of dual citizenship. Children born in the United States of Japanese alien parents, and especially those children born before December 1, 1924, are, under many circumstances, deemed, by Japanese law, to be citizens of Japan. No official census of those whom Japan regards as having thus retained Japanese citizenship is available, but there is ground for the belief that the number is large.
This does acknowledge that many Japanese folks born in the US are citizens because of that. It doesn't get in to any issue of children of actual "enemy belligerents". It might be the first time in the cases we've looked at where the Court seems to seriously accept that there are a bunch of folks with "dual citizenship". Up to this point, I feel like it was kind of anathema to the Court, and there was this constant business about "you have to choose, and if you're a kid, you have to choose by the time you grow up", because I got the feeling that the Court didn't like the idea of dual citizenship. (Granted, I get the feeling that federal law didn't like dual citizenship much before; I suppose I should mention somewhere that Petitioners still don't like dual citizenship and think that even current law is trying to reduce it, for whatever that's worth.)
Respondents use this for a strong claim that the Court "has never once inquired into parental domicile". Ehhhhh, they weren't dealing with a specific case here where that sort of inquiry could have even come up, so that's kinda weak.
Korematsu v. United States 1944
This is a big famous one. Rather than just challenging a curfew order, this one is challenging the whole scheme of internment of people with Japanese ancestry in America. You've almost certainly heard of this one. The Court even recently said:
Korematsu was gravely wrong the day it was decided, has been overruled in the court of history15, and—to be clear—“has no place in law under the Constitution.”
Honestly, there's very very little here that's relevant for us. At least the Respondents cited a dissent, but it's just for the following:
Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable.
This one was on the border of me just skipping, but it's big and famous, and mayyyyyybe on the outside edge of being relevant.
Johnson v. Eisentrager (1950)
Twenty-one German nationals were in China.
They alleged that, prior to May 8, 1945, they were in service of German armed forces in China. They amended to allege that their employment there was by civilian agencies of the German Government. Their exact affiliation is disputed, and, for our purposes, immaterial.
Note that on May 8, 1945, Germany unconditionally surrendered and told their forces to cease hostilities. These guys were alleged to have committed war crimes by continuing hostilities against the US, I guess by helping out the Japanese armed forces who were still fighting. They were taken prisoner, tried and convicted in China, then moved to a prison in US-occupied Germany. They wanted to challenge various parts of their trial/conviction/imprisonment with reference to the US Constitution. Justice Jackson has the Opinion of the Court.
Modern American law has come a long way since the time when outbreak of war made every enemy national an outlaw, subject to both public and private slaughter, cruelty, and plunder. But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments.
Petitioners pull from this section:
The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. During his probationary residence, this Court has steadily enlarged his right against Executive deportation except upon full and fair hearing. And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties -- such as the due process of law of the Fourteenth Amendment. [citations removed]
But Justice Jackson thinks that "territorial jurisdiction" matters:
But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act.
He cites Yick Wo and another case. He goes on to say:
It is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. While his lot is far more humane and endurable than the experience of our citizens in some enemy lands, it is still not a happy one. But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war, and not as an incident of alienage. Judge Cardozo commented concerning this distinction: "Much of the obscurity which surrounds the rights of aliens has its origin in this confusion of diverse subjects."
I only quoted so much to be able to say, "Yes. Yes it is confusing when we're considering 'enemy aliens' or 'enemy belligerents', as I mentioned above." He says:
American doctrine as to effect of war upon the status of nationals of belligerents took permanent shape following our first foreign war.
He then talks about the craziness of "modern total war". Then,
The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.
He says:
The resident enemy alien is constitutionally subject to summary arrest, internment, and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment
He makes a distinction between a resident alien enemy and nonresident alien enemy, citing Clark v. Morey:
"A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity."
and Ex Parte Kawato:
"The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today."
However, for nonresident alien enemies:
But the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have been this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy.
These guys never resided in the US. And the Court says that, being in Germany, they are not within the "territorial jurisdiction" of the US. The opinion doesn't really engage with questions of whether US-occupied territory is within the "territorial jurisdiction" of the US; it seems to pretty much just assert it. That's probably what I would have found to be most interesting, especially considering the old cases from the Revolution when Britain occupied NY, and the Court sort of considered it "British territory" during the occupation.
There is a dissent, by Justice Black, with two others. I don't see that it really digs into this interesting question, either. It does say that it's a dangerous precedent, and sure, I can totally see how this was a precursor decision to stuff like the Gitmo situation. All in all, kind of interesting, but doesn't really dig into the topics that I wanted to learn more about.
Savorgnan v. United States (1950)
US-born citizen moves to Italy and gets Italian citizenship. Statute at the time says that this means she's expatriated and no longer a US citizen. The Court is fine with this. Petitioners today cite it for one line:
The United States has long recognized the general undesirability of dual allegiances.
I'll quote just a bit more:
Temporary or limited duality of citizenship has arisen inevitably from differences in the laws of the respective nations as to when naturalization and expatriation shall become effective. There is nothing, however, in the Act of 1907 that implies a congressional intent that, after an American citizen has performed an overt act which spells expatriation under the wording of the statute, he nevertheless can preserve for himself a duality of citizenship by showing his intent or understanding to have been contrary to the usual legal consequences of such an act.
At least, at that time, the US seemed pretty serious about not wanting dual citizenship. I'll quote just one more piece, not because I think it really matters today; just because I find it interesting and surprising.
This Court, in interpreting § 3 of the Act of 1907 as it existed from 1907 to 1922, has passed upon substantially this question. Section 3 then provided that "any American woman who marries a foreigner shall take the nationality of her husband." While that provision was in effect, a woman who was a native-born citizen of the United States married a subject of Great Britain residing in California. The woman had not intended to give up her American citizenship. On being advised that she had done so, she sought a writ of mandamus to compel the local Board of Elections to register her as a voter, and she showed that she had the necessary qualifications for registration provided she established her American citizenship. The Court held that, during her coverture, her expatriation was binding upon her as the statutory consequence of her marriage to a foreigner in spite of her contrary intent and understanding as to her American citizenship. She accordingly was denied relief. [citations removed]
That wasn't even the case at hand; they're just telling a story. But yeah, I was not expecting that.
Kawakita v. United States (1952)
A weird kind of flip from the last case. US-born citizen who also had Japanese citizenship moved to Japan, stayed there through the war, took a job at a POW camp, but wasn't actually part of the military. Maybe a bit of hubris from the syllabus:
After Japan's surrender, he registered as an American citizen, swore that he was an American citizen and had not done various acts amounting to expatriation, and returned to this country on an American passport.
Was eventually tried by the US for treason for his acts. First question is whether he expatriated and lost his US citizenship. In saying that this is the flipside to the last case, this is one where the US wanted to say that he didn't lose his US citizenship and was a dual citizen, so they could try him for treason. The determination was really fact-bound, and I'm just not going to get into it. Read it if you're interested, but I should probably spend less time on some of these questions that are a shade outside of relevance to today's case. Maybe just some interesting quotes. Petitioners cite:
One who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting.
I'll quote some more that I found interesting.
Dual nationality, however, is the unavoidable consequence of the conflicting laws of different countries. One who becomes a citizen of this country by reason of birth retains it even though, by the law of another country, he is also a citizen of it. He can, under certain circumstances, be deprived of his American citizenship through the operation of a treaty or an act of Congress; he can also lose it by voluntary action. But American citizenship, until lost, carries obligations of allegiance, as well as privileges and benefits. For one who has a dual status, the obligations of American citizenship may at times be difficult to discharge. An American who has a dual nationality may find himself in a foreign country when it wages war on us. The very fact that he must make a livelihood there may indirectly help the enemy nation. In these days of total war, manpower becomes critical, and everyone who can be placed in a productive position increases the strength of the enemy to wage war. Of course, a person caught in that predicament can resolve the conflict of duty by openly electing one nationality or the other and becoming either an alien enemy of the country where he resides or a national of it alone. Yet, so far as the existing law of this country is concerned, he need not make that choice, but can continue his dual citizenship. It has been stated in an administrative ruling of the State Department that a person with a dual citizenship who lives abroad in the other country claiming him as a national owes an allegiance to it which is paramount to the allegiance he owes the United States. That is a far cry from a ruling that a citizen in that position owes no allegiance to the United States. Of course, an American citizen who is also a Japanese national living in Japan has obligations to Japan necessitated by his residence there. There might conceivably be cases where the mere nonperformance of the acts complained of would be a breach of Japanese law. He may have employment which requires him to perform certain acts. The compulsion may come from the fact that he is drafted for the job, or that his conduct is demanded by the laws of Japan. He may be coerced by his employer or supervisor or by the force of circumstances to do things which he has no desire or heart to do. That was one of petitioner's defenses in this case. Such acts -- if done voluntarily and willfully -- might be treasonable. But, if done under the compulsion of the job or the law or some other influence, those acts would not rise to the gravity of that offense. [citations removed]
and
In short, petitioner was held accountable by the jury only for performing acts of hostility toward this country which he was not required by Japan to perform.
If he can retain that freedom and still remain an American citizen, there is not even a minimum of allegiance which he owes to the United States while he resides in the enemy country. That conclusion is hostile to the concept of citizenship as we know it, and it must be rejected. One who wants that freedom can get it by renouncing his American citizenship. He cannot turn it into a fair weather citizenship, retaining it for possible contingent benefits but meanwhile playing the part of the traitor. An American citizen owes allegiance to the United States wherever he may reside.
Circumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship. An American with a dual nationality who is charged with playing the role of the traitor may defend by showing that force or coercion compelled such conduct. The jury rejected that version of the facts which petitioner tendered. He is therefore forced to maintain that, being a national and a resident of Japan, he owed no allegiance to the United States even though he was an American citizen. That proposition we reject.
Petitioners cite the "Circumstances may compel..." language, but they definitely pull it out of context. Here, it's actually saying that those compelling circumstances could be a defense, whereas they're sort of just using it as a general argument against dual nationality. Pretty shameful cite.
Immigration and Nationality Act of 1952
Even more comprehensive than the 1940 Act that was just about Nationality; this one covered both that and Immigration. Even longer. But it still has the same wording for the one critical part, and that part is still law. I don't have anything to add here that I didn't say about the 1940 Act. Like, mayyyyybe, someone might think, "Well, the meaning of the phrase hadn't quite changed by 1940, but it was clear that Congress intended to do X by 1952," but I don't recall any of the briefs arguing this. Mostly, everyone agrees that Congress adopted their preferred reading in both Acts of 1940 and 1952.
Hintopoulos v. Shaughnessy (1957)
Husband and wife work on foreign ships (different ones? I don't know). Wife lawfully enters US in July 1951. She's pregnant, sought medical advice, and decided it was in the interest of her health to stay. Husband joins her from his ship a month later. Apparently, the statute at the time only allowed alien crewmen to stay in the US for 29 days. Their child is born in November. In January, they disclose their illegal presence to the gov't and petition to be able to stay under a statute that allows the Attorney General to suspend deportation "if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien".
The government finds that they would qualify under the statute, but deny the request as a matter of discretion, saying:
They have been in the United States for a period of less than one year. They have no relatives in this country other than each other and their son. To grant both this form of relief upon the accident of birth in the United States of their son would be to deprive others who are patiently awaiting visas under their already oversubscribed quotas.
The Court thinks that the government has discretion to make that choice, even if they meet the minimum legal standard of the statute.
Respondents cite this for obvious reasons. The Court never questions whether their child was actually a US citizen. By this point, in 1957, it seems that everyone involved pretty much just assumes that the child is a US citizen, even though he was born while the parents were unlawfully present.
Kennedy v. Mendoza-Martinez (1963)
Draft dodgers, can they be depatriated? It's not entirely clear from this case. I won't go through it in detail, but it is a somewhat interesting read. The reason why it's not entirely clear is because they don't actually answer that question. Instead, the Court says that the statute that strips citizenship of draft dodgers is penal or punitive, so you need to have a full criminal procedural process with 5A/6A protections. The statute technically stripped them of citizenship merely upon the moment that they met the conditions, so it's not constitutional.
It's a bit of a shocker in the other direction, given that we recently saw a case where a woman was depatriated for just marrying a foreigner. I suppose these things could conceivably be reconciled in that it doesn't feel like it's a punishment for getting married, just, like, an administrative thing, I guess? But yeah, cases in this era sometimes seem like they're running a bit on feels, and I wouldn't be surprised to see this court go absolutely ballistic at something like that. This one was a bitter 5-4, though, so if you're up for a fight as to what counts a penal/punitive, enjoy the long read. I'll note that two Justices concurred to say that they didn't actually care about the penal/punitive business and just thought that Congress didn't have any power at all to expatriate people.
I'm going to try to not give it too much more thought at this time. I'll maybe just pull one quote from the conclusion of the Opinion of the Court that I thought was interesting:
Moreover, the truth is that, even without being expatriated, the evader living abroad is not in a position to assert the vast majority of his component rights as an American citizen. If he wishes to assert those rights in any real sense, he must return to this country, and, by doing that, he will subject himself to prosecution. In fact, while he is outside the country evading prosecution, the United States may, by proper refusal to exercise its largely discretionary power to afford him diplomatic protection, decline to invoke its sovereign power on his behalf. Since the substantial benefits of American citizenship only come into play upon return to face prosecution, the draft evader who wishes to exercise his citizenship rights will inevitably come home and pay his debt, which within constitutional limits Congress has the power to define.
This does seem like quite the vibe shift from a Court that spoke about a Navy captain feeling "compelled" to train his ship's guns on a foreign naval vessel in order to secure the release of a not-entirely-naturalized-yet guy.
There is probably a lot more one could get out of this case, but having it be about process rather than the core issues makes it kinda weak. It's extra weak that the only reason it was cited by Respondents turns out to be that the Court cited WKA in a footnote to say that common law is a thing for interpreting 14A. Laaaaame.
INS v. Errico (1966)
Very similar to Hintopoulos in that the Court just sort of states as a matter of fact the citizenship of children of deportable immigrants. The rest of the Opinion isn't of very much use to us. It's statutory interpretation that will either enrage you or cause you to well up with pride, depending on your politics. What matters here for Respondents is just this:
Errico ..., a native of Italy, falsely represented to the immigration authorities that he was a skilled mechanic with specialized experience in repairing foreign automobiles. On the basis of that misrepresentation, he was granted first preference quota status under the statutory preference scheme then in effect, and entered the United States in 1959 with his wife. A child was born to the couple in 1960 and acquired United States citizenship at birth.
and
Scott ..., a native of Jamaica, contracted a marriage with a United States citizen by proxy solely for the purpose of obtaining nonquota status for entry into the country. She has never lived with her husband, and never intended to do so. After entering the United States in 1958, she gave birth to an illegitimate child, who became an American citizen at birth.
Both of their frauds were discovered at some point, and they became deportable. But their stories aren't what really matters for Respondents today. What matters is that everyone apparently thought that their children were US citizens, and it appears to have just not come up to think that they could not be.
Berenyi v. Immigration Director (1967)
Guy applied for naturalization. Said that he had never been a member of the Communist Party and been connected/associated to it. Oh no! He maybe was; at least he attended some meetings. SCOTUS says that the District Court can make the determination about whether he was or whether he lied on his application. There's not much here. I guess some language about how the burden is on the applicant for requests for naturalization and that it can be a high bar.
Petitioners cite this in support of a quote from Manzi, but that quote isn't really in here, and there's really nothing too related here. Definitely a bad cite.
Afroyim v. Rusk (1967)
What a difference a few years makes! Remember that draft dodgers case? Remember that there were two Justices who thought that Congress had no power to denaturalize people? Well, Justice Goldberg was the guy who wrote that majority Opinion for the Court. He was apparently only on the Court for three years. President Johnson apparently convinced him to resign and become the ambassador to the UN, so that he could appoint Abe Fortas. And just like that, there were now five full votes for the proposition that Congress has no power to denaturalize people.
This was again a bitter 5-4, with the same four dissenters. There's a lot of legislative history. Primarily, they note that there's nothing in 14A about any way that a person could become not a citizen. Money quote for Respondents:
Though the framers of the Amendment were not particularly concerned with the problem of expatriation, it seems undeniable from the language they used that they wanted to put citizenship beyond the power of any governmental unit to destroy.
This is pretty much a 180 from the Justice Story dissenting position in Inglis that the born subject can't do anything to dissolve their allegiance, and that the sovereign has to. I don't have a lot else to say about this. I've already gotten too distracted by denaturalization, so I guess maybe it's good that that's done now?
Rogers v. Bellei (1971)
Aldo Bellei was born in Italy to an Italian father and US citizen mother. By statute, he gained US citizenship. Oh no! That statute says that he loses citizenship if he doesn't reside in the US continuously for five years between the ages of 14 and 28. Aldo didn't.
It's another bitter 5-4. The majority observes that he was not "born in the US" and says that he was also not "naturalized in the US", so 14A doesn't apply. Congress can apparently set rules like this for naturalization. Petitioners cite this for its talk about dual nationality:
The Congress has an appropriate concern with problems attendant on dual nationality. These problems are particularly acute when it is the father who is the child's alien parent and the father chooses to have his family reside in the country of his own nationality. The child is reared, at best, in an atmosphere of divided loyalty. We cannot say that a concern that the child's own primary allegiance is to the country of his birth and of his father's allegiance is either misplaced or arbitrary. [citations removed]
The main fight is over whether Afroyim controls here. The dissent thinks it does. Moreover, they think that, so long as the US is choosing to do naturalization services overseas, the part of 14A that says "naturalized in the US" should be effectively read "naturalized into the US".
Elkins v. Moreno (1978)
Student on a student visa. Wants in-state tuition from University of Maryland. UMD says no, because you have to be domiciled in the state, and you can't be domiciled (have an intention to remain permanently) when you're on a visa that specifically says you're not allowed to stay permanently and must leave afterward.16
There's not a lot more for this. Obvious why Petitioners cite it, as they're pushing domicile.
Landon v. Plasencia (1982)
Maria Plasencia was, I think, our first example of a permanent resident alien who is called out as such. She traveled to Tijuana and tried to smuggle some other Mexican/Salvadoran nationals over the border. I've never dug into the types of offenses that can merit revocation of permanent residence, and I'm not going to now. The Court seems to agree that this type of thing is sufficient; the dissent complains about the process used, though.
Petitioners cite it for this paragraph:
This Court has long held that an alien seeking initial admission to the United States requests a privilege, and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. Our recent decisions confirm that view. As we explained in Johnson v Eisentrager, however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.
I mean, I guess Petitioners are making the argument that when aliens come to the US, they sort of gradually move up the scale in terms of allegiance/rights? There doesn't seem like there's much here.
Toll v. Moreno (1982)
University of Maryland and in-state tuition again. This time, apparently, the visa allowed them to establish a domicile. UMD has to respect that.16
Plyler v. Doe (1982)
I think this is our first encounter with the term "undocumented aliens". There are some kids who are undocumented and not lawfully present in the US. Does a State's public school system have to admit them?
This case isn't directly about the Citizenship Clause. There is no claim that these kids were born citizens or anything. It's about the due process/equal protection clauses, which if you remember, talks about "any person" and "any person within its jurisdiction". It's a bitter 5-4 and generated three concurrences, for a total of five opinions. Justice Brennan writing for the Court:
Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. [citations removed]
I removed citations, but some are familiar to us, like Wong Wing and Yick Wo. Justice Brennan acknowledges that the due process clause uses the phrase "any person" while the equal protection clause uses "any person within its jurisdiction". He doesn't see a difference between them:
There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection," and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment.
There is no business about licenses anymore. No business about political jurisdiction like we had seen long ago in Citizenship Clause cases. This is the notion of jurisdiction:
Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish.
Footnote 10 is (foot)notable.17
Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." (Emphasis added. [by Justice Brennan]) Justice Gray, writing for the Court in United States v. Wong Kim Ark, detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was
"impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States.'"
Justice Gray concluded that
"[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States."
As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. [citations removed]
It seems to me that Justice Brennan actually acknowledged a tension, but didn't dig into it. That is, the phrase "bounded only, if at all, by principles of sovereignty and allegiance". Like, to me, that's kind of been the question all along?! Is he saying, 'Nah, those principles of sovereignty and allegiance aren't real bounds; maybe they were at one point, but now they basically don't matter'? Is he saying that principles of sovereignty/allegiance might provide bounds for the Citizenship Clause, but not Due Process/EPC? That would seem contrary to him just saying that they're the same? I don't understand how it's supposed to work.
The other notable thing in this case is the sentence that Respondents cite from it:
illegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a State. C. Bouve, Exclusion and Expulsion of Aliens in the United States 340 (1912).
I kept the citation this time. I've been mostly skipping going into commentaries for the purpose of understanding the Citizenship Clause. I did look at a couple, but decided to restrict my scope in this post for the reasons given at the outset. This is kind of an exception, because I've never seen a claim like this before, and it's not justified by reasoning or cites to other cases or anything. There's no, "...here are the traditional criteria..." stuff. Instead, it's just a cite to this commentary. The citation is for page 340, but I think the relevant section starts on page 338 and is worth reading for a while. It's talking about "municipal status", which is sort of foreign to the modern ear:
The term “municipal status” in its specific application to the Immigration and Exclusion Laws is here used to denote the rights acquired by an alien under the municipal laws of the United States regulating the subject of the admission and exclusion of aliens after having been duly admitted to residence here by the administrative officers; or, it may be added, an alien who enters this country irrespective of the provisions of the Immigration or the Exclusion laws, where those laws have no application to the particular alien; and to these two classes of foreigners there must be added a third — that of aliens who, after having entered unlawfully have remained here for a longer period than that in which the law authorizes their deportation, if found to have entered unlawfully.
It says there's also a distinction, because most unlawful entrants can, by statute, only be deported if discovered within three years, but the Chinese Exclusion Act says there's no limit for Chinese people.
The fixed municipal status is, of course, permanent only insofar as existing laws regulating the admission and exclusion of aliens are concerned. No foreigner, as long as he retains his political status as such, can be said to acquire a permanent municipal status in the United States, in the sense that it may not be submitted to the restrictive operation of Congressional legislation passed subsequent to his admission, or altogether terminated by such legislation; in other words, the rights of foreigners residing in the United States are always conditional on the continuance of the governmental permission to exercise them.
And again, this three year limitation is apparently a creature of statute:
The act of deporting such alien is the extent to which the Immigration laws can be operative with regard to him within the three year period. With the passing of the period the right to deport no longer exists, and the right to remain becomes absolute as far as the Immigration act is concerned.
It notes that municipal status is different from domicile.
The term “municipal status” acquired under the immigration laws is in no way to be confused with the acquisition of domicile. An alien, who, whether entering in violation of the Immigration acts, or, after being duly passed by the immigration authorities in the manner provided by law, takes up his residence here with intent to remain has done all that is necessary for the acquisition of a domicile. The only difference is that if the entry is lawful the municipal status is fully established, subject only to termination by the commission of acts subsequent to entry which the law provides shall justify the forfeiture of the domicile lawfully acquired; whereas, if the entry is unlawful the municipal status is not complete except on the expiration of the three year period within which aliens entering in violation of law are subject to deportation on the ground of unlawful entry.
This distinction is important because:
The recognition of this distinction becomes of the first importance in considering questions arising in connection with the right of an alien to re-enter the country based on previous domicile here; for in so far as, under the Immigration acts, the right of an alien to re-enter is based on continuing rights of domicile previously acquired, it seems plain that the acquisition and the maintenance of the domicile must be lawful in order to sustain the alleged right to re-enter based thereon.
This is getting a bit afield, but it's so strange to moderns. There are sometimes some rights that attach to domicile, like the right to re-enter. You can "get domicile" pretty easily, I guess, by just intending to stay, but that doesn't necessarily get you the right to re-enter.
The Chinese person of the exempt class, being an alien and, under our laws, incapable of naturalization, could claim no greater right through having been admitted in accordance with the Exclusion Act of 1882 than any other alien residing in the United States. He like any other alien, can never acquire by domicile or otherwise, a vested right to remain.
Apparently "getting domicile" doesn't get you a "vested right to remain" either. It goes on. There are ways to lose "municipal status". It gets weirder. At one point, they say they'll consider cases in a later section where someone enters unlawfully, stays past three years, which would normally gain "municipal status", and then wants to re-enter. They refer to page 465, which jumps to talking about class distinctions. Like, the talk about prostitutes a lot. Apparently, if you're a prostitute, it sort of doesn't matter if you made it past that three year mark? It's so confusing.
I think what they're saying is that 'domicile' is sort of easy to 'get'. You just get to somewhere and subjectively intend to stay there permanently. But then to what exent is it important for anything? There are all sorts of situations/rules. But then, we had other cases not too long where they said that conditions on an entry visa can prevent you from 'getting domicile', so I don't know?
Verlinden B.V. v. Central Bank of Nigeria (1983)
Is the Foreign Sovereign Immunities Act Constitutional? I don't really care. I almost skipped this, but Petitioners quoted the paragraph that cited Schooner, so I feel almost obligated.
For more than a century and a half, the United States generally granted foreign sovereigns complete immunity from suit in the courts of this country. In The Schooner Exchange v. M'Faddon, Chief Justice Marshall concluded that, while the jurisdiction of a nation within its own territory "is susceptible of no limitation not imposed by itself," the United States had impliedly waived jurisdiction over certain activities of foreign sovereigns. Although the narrow holding of The Schooner Exchange was only that the courts of the United States lack jurisdiction over an armed ship of a foreign state found in our port, that opinion came to be regarded as extending virtually absolute immunity to foreign sovereigns.
As The Schooner Exchange made clear, however, foreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution. Accordingly, this Court consistently has deferred to the decisions of the political branches -- in particular, those of the Executive Branch -- on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities.
I guess Petitioners are saying that, as a Constitutional matter, there really isn't even an exception for foreign ministers. The US just chooses to do it. That's a bit weird. I don't really know what it would imply, if true.
INS v. Rios-Pineda (1985)
Redux of Hintopoulos and INS v. Errico, in which unlawful entrants have a child (two, actually), and the Court just states that the kids are US citizens and inquires about whether INS had the right process in using discretion during deportation proceedings. They apparently did, and I'm not sure that this adds anything beyond the other cases, except to say that the Court has done this multiple times.
Miller v. Albright, 523 U.S. 420 (1998)
I'm not going to say anything real about this. Petitioners just cite Justice Breyer's dissent for the claim that the US has extended citizenship to foreign born children of citizens. I guess that sentence is in there, so it's not a straight bad cite. It's an interesting side show case, though. Apparently, the father was a US serviceman in the Philippines, and he had an illegitimate child with a Philippino woman. The statute has some business about needing to legitimate the child before age 18, and there is a different treatment depending on whether the US citizen is the mother or father. Sounds kinda complicated. Worth a look if you're interested, but I won't say any more.
Carlson v. Reed (9th Cir. 2001)
Not SCOTUS. Ninth Circuit. Basically the same as Elkins v. Moreno and Toll v. Moreno. The type of visa you have can prevent you from establishing domicile, I guess even if you keep renewing it and subjectively intend to stay.16
Tuan Anh Nguyen v. INS (2001)
Basically the same as Miller v. Albright; I'm not going to try to figure out the differences. The statute can treat foreign-born children of US citizen fathers differently than foreign-born children of US citizen mothers. Maybe a money quote for Petitioners:
it should be unsurprising that Congress decided to require that an opportunity for a parent-child relationship occur during the formative years of the child's minority. In furtherance of the desire to ensure some tie between this country and one who seeks citizenship, various other statutory provisions concerning citizenship and naturalization require some act linking the child to the United States to occur before the child reaches 18 years of age.
Sessions v. Morales-Santana, 582 U.S. ___ (2017)
Apparently, now the Court thinks that at least one provision of the law treating children born abroad to a US citizen father differently from a US citizen mother is now unconstitutional? I'm not going to figure out the details of why. Petitioners only cite this for the idea that, in this case, apparently the Court said that they were only going to implement the new rule "prospectively", so if your case was already in the past, no dice. Since Petitioners want to implement their own rule prospectively, they cite this.
Park v. Barr (9th Cir. 2020)
Not SCOTUS. Ninth Circuit. I was ready to barely cover it, because Petitioners just cite it for this quote:
It would be inconsistent to conclude that Congress sought to preclude nonimmigrants who comply with federal immigration law from the benefits that flow from state domiciliary status while permitting nonimmigrants who violate their visa conditions to share in them.
But what's weird and worth saying a few words about is that this is a topsy-turvy case where everything's kind of upside down.
Woul Park entered the US on a B-2 tourist visa. She was married to another Korean. She overstayed her visa and just didn't leave. It's not clear what her husband did, but they filed for divorce at the Korean Consulate in California. She then married a US citizen, got a green card that way, and was applying for naturalization.
Oh no! Turns out that California law, for reasons I do not understand and are not described, simply doesn't recognize foreign divorces of foreign people when they're both domiciled in California. And so, if they were domiciled in California, her divorce was invalid, her new marriage was invalid, and so no citizenship.
Typically, at least in every case we've seen up to this point, it seems to be useful to a person who wants to stay in the US (with permanent residency or citizenship or whatever) to be able to claim that they're "domiciled" here. That their subjective intent is to never leave. I believe that she was claiming that she was domiciled and had no intent to leave... at least until this twist. But remember Elkins v. Moreno, Toll v. Moreno, and Carlson v. Reed? Her federal visa said that she couldn't acquire domicile.16 Suddenly, at least one alien in the US really wanted to not be considered as being domiciled, because then her divorce would be valid, her new marriage would be valid, and she could become a citizen.
The Ninth Circuit agreed with her. So, weirdly, they're saying that they're not giving benefits to people who violate federal law, because to recognize her domicile would be giving her a benefit for violating the terms of her visa... but the outcome is that she got citizenship, I guess kind of in part because she tried to violate the terms of her visa, and I guess the task failed successfully? Wild case.
I don't really have much to say on this one. I can see how the rules are apparently working, mechanically. I can't quite see how the outcome in this particular case serves the purpose of the quote that Petitioners pulled from it.
Haaland v. Brackeen (2023)
This is an almost skip. Indian Law. I don't understand it. The actual issue of the case doesn't matter. It's just cited by Petitioners because it talks about the various ways Congress has "plenary and exclusive" power over Indian tribes. Maybe check out if you really want to dig through the cites and try to figure out how in the world all the Indians are Weird, yo stuff works. Maybe you can figure out how to incorporate that into our question today, but it's beyond me.
Wilkins v. United States (2023)
Another almost skip. Petitioners cite it for one line:
“Jurisdiction, this Court has observed, is a word of many, too many, meanings.”
The quotation marks are because this case is, itself, just citing another case for that line. It's almost a straight bad cite, because the case has nothing to do with today's question, and I don't see how their discussion of some of the meanings of "jurisdiction" are at all related. I'm relenting, because I do feel the point of this quote in my bones after making it this far. What does jurisdiction mean? In what context? Even with a context, I might still not know.
Trejo v. Blinken (S.D. Tex. May 9, 2024)
Not SCOTUS. District Court in Texas. Cited by Petitioners as an example of what they think are bad consequences of having a policy where any birth in the US at all gives US citizenship. This is an almost-skip, because I generally don't spend a lot of time with the policy preferences bit. I guess it made the cut, because it's a clear case where a court has the current understanding that it basically doesn't matter how it happened, if you were born on US soil, you're a citizen.
Alyn Trejo lived in a border town in Mexico. She was pregnant and wanted her child to have US citizenship. In late August 1997, "with her due date approaching", she enlisted a smuggler to get her across the border. She gave birth on September 7.
The details of the record-keeping was spotty, so the court had to find by a preponderance of the evidence standard that the child was born in the US. They thus concluded that the child was a US citizen.
And sure, that's one of the stakes of this case. It's a pretty clear example of the extreme case. If the rule is that none of that allegiance stuff matters, none of that domicile stuff matters, there's no factor other than whether a person physically got onto US territory to give birth that matters, then this child is a US citizen. You may think that's a wonderful thing. You may think that's a terrible thing. But it is an example of what's at stake to folks today.
Obviously, there are other extreme examples on the other side. Folks who discover that they've "lost" (or didn't have from the start) citizenship that they thought they had. Or situations where it now requires complicated documentation/evidentiary standards that get flubbed up for some reason, and somebody who should be a US citizen gets denied. There are plenty more if you read some of the amicus briefs in support of Respondents.
I guess that's an okay way to end.
Conclusion
Whelp, I tried to look through all the American case law. It was a lot. I tried to figure out which parts were relevant and dig in a bit when I thought there might be something interesting.18 I tried to report it to y'all in a way that hopefully was slightly less intimidating than just going at it completely raw. Was it helpful to you, or just an abhorrent mess? Was it helpful to me? Like I've said many times, I don't know.
I've mostly tried to keep my own opinions out of it. I probably haven't succeeded too well. So, what do I actually think after having completed this journey?
If I had to, gun to my head, say what I think the Court has mostly embraced over the centuries for how to think about this topic, I'd probably say that it was all just right at the beginning. That's right, I'm not sure you needed to read almost anything after Schooner. I think it's all about Schooner. Every time the Court seemed to say something really relevant, it was an appeal to Schooner. Every single time they cite Schooner, they do so approvingly. Both principal briefs cite Schooner a bunch, approvingly. Almost every time the Court departs from Schooner, it seems to be a confusing mess. Even ancillary issues like whether an entry visa (a license) can control whether you can establish domicile is basically screaming out that folks should go back to taking Schooner seriously. Wong Kim Ark, itself, didn't just cite Schooner for the critical part that discussed temporary visitors, the entirety of the analysis was nothing but a direct quote of Schooner. Then, it simply restated that what Schooner declared were "incontrovertible principles". Even the modern example of Plyler v. Doe stumbled around, not fully understanding Schooner, but seeming to think that "sovereignty and allegiance" had something to do with things, but coming off very confused, because they didn't dig in to how basically all the case law that is half decent on this topic points back to Schooner.
I think the Court wants the Full Schooner. Temporary visitors have a "local and temporary allegiance". Probably, that's enough for their kids to get US citizenship. It still might be complicated, but that's pretty much what I think. For folks who straight up entered unlawfully? "You got a liocense for that?" is probably about where I'd end up. They don't have a license under which they enter, even an implied one. They have an express prohibition on entering. I can't see how there is any way to impute to them, or their children, any sort of "local or temporary allegiance". Does that matter? I think the Court has mostly thought that it matters. What about folks who enter lawfully (with a license), but then become unlawfully present? I still have no idea what principles should even come into play.
What does that mean for our definition of "jurisdiction"? I still don't know. I think there's mayyyybe just enough of a thread continuing through the cases that "subject to the juridiction thereof" still means something about political jurisdiction/allegiance, but man, who knows?!
Of course, I don't think either party can really say that it should probably just be the Full Schooner, because I think that the Full Schooner probably results in a split decision - lawful temporary visitors are on one side, and unlawful entrants are on the other side. Petitioners want both categories to be out, and Respondents want both categories to be in. Respondents, in particular, are very happy to bang the Schooner Drum when it comes to temporary visitors, but they don't really engage with the framework that it put in place when it comes to unlawful entrants.
Am I still bullish on the Roberts Court actually being able to clear any of this mess up? ...much less so than I was three-quarters of a decade ago. After going through all this, this one is just too messy. Sooooo messy. Now that I've seen what I've seen, almost every piece of writing I now see on this topic, from like law professors and such (many of whom are, admittedly, trying to reach a result) just seems so incoherent with all the history, as in, it just does not cohere with what has actually gone down. Admittedly, some folks are leaning ever more heavily on legislative history or other non-Court historical research that I don't know much about, and they may be totally right about that, but it just doesn't jive with the cases. I'm now expecting to read the Court's decision and either respond with, "Huh, they took the statutory out and didn't say anything about the Constitution," or, "Eugh, this Constitutional analysis just makes even more mess and doesn't make sense with all this other stuff."
Oh, I guess one last last note. The Court could also take the out that the President is not allowed to make such a change via executive order. This is plausible, but I guess Schooner also implied that it was up to the "sovereign" to decide who had a license or not in some cases. Does the President count for that? I don't know. Maybe it has to be Congress. I did say three-quarters of a decade ago that it would be quite interesting if there was a statute which effectively said that illegal immigrants didn't have the proper local and temporary political allegiance to be considered "subject to the jurisdiction thereof". That's probably not going to happen, and so we're again slightly less likely to get a real, detailed, coherent Constitutional Opinion of the Court.
1 - The government can file an additional reply brief. It appears to be due, to my calculation, on March 20. I'm probably not going to wait to post this until that time, so obviously I won't have included information from it.
2 - I tried; I really did. Some parts, I could already tell I wasn't going to personally care much about and probably wouldn't comment much on, so I skipped through some of that. Also, some were obviously going to be just repetitive with nothing new/interesting. And some were just so obnoxious, I just couldn't do it. Sorry.
3 - In this case, the government lost in the court below. Thus, they were the ones to have petitioned the Supreme Court to review the case. Thus, they are the "Petitioners". Barbara and those arguing against the Executive Order and in favor of the more expansive view of birthright citizenship are referred to as "Respondents". I will generally try to stick to these terms in describing the parties.
4 - There was some argument as to whether the vessel was, properly considered, a truly commissioned public armed ship that is, in essence, an extension of the French State. The Court concluded that it was, but doesn't seem to have gotten into the details of why, what arguments they turned aside and why, etc.
5 - These are the only two places where the word "allegiance" appear in the opinion.
6 - "Dicta" is the observations of the court that are not critical to the holding of the Court for the exact case that is in front of them. Sometimes, dicta can really be misleading, as the Court may not be really focused on these side matters, so they might flub it a little bit more, since it isn't so critical. Other times, it can be very useful and indicative of general frameworks/theories and how to understand the direction of law more broadly. There are often bitter fights as to which category a piece of a prior opinion is in.
7 - Like, suppose the US conquered and occupied a random country in, say, the Middle East. Is there a time at which the US "acquire[s...] firm possession" and is enabled to "exercise the fullest rights of sovereignty" over it? Does that change if the US swears it's not exercising sovereignty and is trying to prop up some other government instead? The mind wonders...
8 - I have not verified this claim independently.
9 - They also claimed that it created an involuntary servitude forbidden by the Thirteenth Amendment.
10 - I've mostly tried to strip out much of my own opinions on these Opinions, to whatever extent that is possible, but maybe if I bury it in a footnote, it'll be okay. I'm not sure I'll remember to come back to this thought in a conclusion section.
When seeing a situation like this in an Opinion, a bit of text just sort of moving us forward through the story, on an issue that doesn't seem to be a major matter of controversy for the Court, my inclination is to think that there's a pretty good chance that it's a "throwaway sentence". It might not have been thought through super hard; perhaps very little research went into the history of the topic, and everyone was so busy caring about other stuff that no one cared to focus on this sentence and make sure that it was right.
11 - First name? Last name? Is it like Prince?
12 - Weirdly, Justice Field had a partial concurrence and partial dissent. I couldn't tell what he actually dissented about. He kicked it off by complaining about some stuff the gov't said in oral arguments. Some AI prompting agrees that he didn't actually dissent from anything the Court said, and I guess he just wanted to also complain about the gov't? I'm not sure why this was labeled a dissent at all rather than just a concurrence.
13 - AI also tells me that summary affirmances don't need to be 9-0, and that there have been dissents from them in the past.
14 - Can I note that it's messed up that there was both a Benny v. O'Brien and an O'Brien v. Benny in the same term at the New Jersey Supreme Court? This caused me some problems for a bit. One of the party briefs cited it the wrong way 'round. But, uh, best as I can tell, the Opinion here in WKA cited it the wrong way 'round, too. Unless I screwed it up. It's confusing and annoying.
15 - Me here. I remember some funnies at the time about whether or not "the court of history" is able to actually overrule prior cases, but yeah, I guess probably not binding precedent anymore? The mind wonders whether this is dicta or a holding, lol.
16 - I might again be tipping some of my opinions here, but my initial reading is to think about this in terms of Schooner-ish "licenses to enter". Those licenses can have terms, and they may be restrictive/enabling in some ways.
17 - I don't know if I would have noticed this footnote on my own reading. I definitely didn't thoroughly go through all the footnotes on every case. I was tipped off to its possible importance by the Ted Cruz et al. brief, which was a rare moment where one of the amicus actually pointed me to something useful in the case history.
18 - I wasn't always successful. I didn't have anywhere else to put this, but I wanted to note somewhere that the brief of Congressmembers in favor of Respondents made the following claim:
When United States v. Wong Kim Ark was argued thirty years later, even the Solicitor General—arguing against Mr. Wong’s citizenship—was forced to concede that the jus soli rule was reflected in unbroken longstanding precedent. As he put it, “the opinions of the Attorneys-General, the decisions of the Federal and State courts, and, up until 1885, the rulings of the State Department all concurred in the view that birth in the United States conferred citizenship.” Brief for the United States at 28, United States v. Wong Kim Ark, 169 U.S. 649 (1898).
I tried and tried and tried to find this. I even clicked through and tried to figure out every page of this archive of the case. I couldn't find it. If someone else can find it, that would be appreciated.
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Notes -
Not to be flippant, but isn't that basically always the case by the time it gets to the supreme court?
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