Occupation, Birthright Citizenship, and the Fourteenth Amendment
It recently occurred to me that,[i] if American soil were ever occupied by a hostile foreign military force, the resultant occupation[ii] would raise interesting questions regarding the citizenship of those born within occupied territory. This is due to the following provision of the Fourteenth Amendment, which generally establishes birthright citizenship for those born upon United States soil:
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.[iii]
During and after such an occupation, two questions would likely arise:
- If someone was born to US citizens or alien friends[iv] residing in that territory, would he be a citizen?
- Would those born the alien enemies adhering to the occupying enemy army be entitled to birthright citizenship?[v]
The following is the result of my ruminations upon the first of these questions.
There are actually two routes to United States citizenship under current law. The first route is via the aforementioned Citizenship Clause of the Fourteenth Amendment. The second is via existing federal statutory provisions regarding nationality & citizenship, as codified in Title 8 of the United States Code.[vi] These statutory provisions, in turn, fall into two categories: those that parallel the Citizenship Clause by requiring subjection to American jurisdiction as a prerequisite to birthright citizenship; and those that do not.
A variety of provisions fall into the second category. One pertains to Native Americans, and grants birthright citizenship to any “person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe…”[vii] Another addresses (some) orphans, granting citizenship to “person[s] of unknown parentage found in the United States while under the age of five years.”[viii] Several others grant citizenship to persons born in foreign countries to US citizen parents.[ix] Finally, a couple of provisions grant birthright citizenship to anyone born in Alaska or Hawaii after 1867 or 1900, respectively.[x]
In view of the foregoing, it would appear that birthright citizenship for at least some categories of persons would remain undisturbed by occupation of American soil. Children born to a member of the various aboriginal tribes would still be citizens a birth. Likewise at least some war orphans within occupied territory, and persons born to American citizens abroad. Similarly, it appears that those born in Alaska or Hawaii would still be born citizens. Given the general obligation of an occupying power to leave already-existing laws in place, it seems that even occupation of American territory would not deprive the aforementioned persons of birthright citizenship.
But what of the remainder? Normally, such persons would be encompassed by either the Citizenship Clause, or its various statutory analogues[xi] in the first category. Yet all of these provisions require not only that a person be born upon United States soil, but also that said person be “subject to the jurisdiction” of the United States at birth. During normal peacetime conditions, this “jurisdiction requirement” isn’t an issue for anyone not born to a foreign diplomat, or abroad foreign public ships located in US waters.[xii] However, should a hostile military force ever occupy an inhabited portion of US territory, this requirement would suddenly assume far greater significance, for this simple reason: Generally speaking, when even a portion of a nation’s territory is occupied by a hostile military force, jurisdiction[xiii] over that territory shifts away from the occupied nation to the authorities established by the occupying power.[xiv] From the advent of the occupation until its end, persons born in occupied American territory would be born subject to the jurisdiction of those occupying authorities, and not the United States.[xv] Thus, even if a child born in occupied American territory was born “in the United States,” it seems he would not be “subject to the jurisdiction thereof” at the time of his birth, and would therefore be ineligible for citizenship under either federal law or the Fourteenth Amendment.
Occupied Territory as a Foreign Country?
Such an outcome seems rather unfortunate. Why should native-born children of American citizens suffer because their government had failed in its duty to prevent hostile occupation of the territory in which they lived? The manifest injustice of such a situation would seem to cry out for relief of some sort. Admittedly, Congress could amend Title 8 to encompass such persons; however, it is entirely possible that a federal government faced with foreign invasion might be too (ahem) preoccupied to address questions of citizenship law. Instead, the question might well be left for the courts to sort out.[xvi] The question would then arise whether such persons could be encompassed by existing statutory provisions via creative lawyering.
One possibility would be the aforementioned provisions regarding US citizens’ foreign-born children.[xvii] Some might argue that, even if the United States contests the occupation in question, American law ought to view occupied territory as foreign soil so long as it remains under foreign control. Although this argument may strike contemporary observers as rather odd, it can cite for support at least some early Supreme Court precedents. In United States v. Rice, for example, the Supreme Court noted that,
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….[xviii]
This view, of course, grew out of English law, in which occupation and conquest were legally the same thing, differing only in terminology and duration.[xix] Occupation was merely a sort of temporary conquest, which nevertheless sufficed to transfer not only jurisdiction, but also sovereignty, over occupied territory to the occupier.[xx] If such a paradigm applies, however, then, then why shouldn’t occupied American territory be treated as foreign soil for the purposes of our citizenship laws?
The short answer is, that U.S. v. Rice and its relatives represent a now-obsolete view regarding the legal & political nature of occupation. Over the course of the nineteenth century, the United States gradually shifted towards acceptance of the European paradigm, which denied that occupation transferred sovereignty to the occupier – even temporarily – prior to some permanent settlement legitimizing such a transfer (e.g., a treaty of cession).[xxi] As explained by a federal circuit court in 1953:
The nineteenth century American view that military conquest completely displaced the sovereignty of the prior possessor…was substantially modified by the Regulations respecting the Laws and Customs of War on Land, ratified by the United States as an annex to the Fourth Hague Convention of 1907. Since the adoption of these Regulations it is generally agreed that the occupant does not succeed to sovereignty over the occupied territory, but has only limited administrative authority.[xxii]
Similar recognition can be found in the distillation of international law presented in the current U.S. Army field manual regarding the laws of war:
Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. Occupation is essentially provisional.[xxiii]
Given current American views regarding the nature of occupation, it therefore seems likely that occupied American territory could not be deemed foreign soil for the purposes of citizenship laws. That being the case, the aforementioned provisions regarding US citizens’ foreign-born children would seem to be inapplicable to those born within said territory.
Citizenship & the Law of Postliminium
There is another possible way around the jurisdictional barrier imposed by occupation. Although the aforementioned shift of jurisdiction between occupier & occupied is a generally-accepted feature of occupation law, there is a caveat of sorts, in the form of an obscure legal concept known as “postliminium.” As described by an article on the concept in Military Law Review:
Postliminium is considered to be that doctrine which holds that after a belligerent occupation of territory has ended, as by defeat or expulsion of the enemy or relinquishment of the territory by voluntary departure of the occupant, and the absent sovereign returns, the territory, its inhabitants and property come under the control of the original and now restored sovereign, and the legal state of things is conceived for many purposes to have been continuously in existence.[xxiv]
Hence, even though occupation might result in de facto displacement of United States jurisdiction prior to the occupant’s departure, through the legal fiction of postliminium it is possible for American courts, in many cases, to act as if occupied territory had remained under American control all along. Would citizenship determinations be one such instance? Could the principle of postliminium make it possible for persons born within occupied territory to be considered “subject to the jurisdiction” for the purposes of birthright citizenship? There are several reasons to think that it would.
First, an application of postliminium to citizenship questions finds some support in deeply-rooted American legal traditions. Almost two centuries ago, Justice Joseph Story suggested the common-law applicability of “a sort of postliminy” to citizenship questions arising from occupation:
[T]he children of the natives, born during such temporary occupation by conquest, are, upon a reconquest or reoccupation by the original sovereign, deemed, by a sort of postliminy, to be subjects from their birth although they were then under the actual sovereignty and allegiance of an enemy.[xxv]
Notably, this excerpt followed Story’s discussion of the common law’s other provisions regarding citizenship, e.g., exceptions for children of diplomats & invading enemy aliens.[xxvi] This same common law of citizenship was later codified[xxvii] by the Fourteenth Amendment’s framers in the Citizenship Clause, and then echoed by the Supreme Court in its seminal opinion in United States v. Wong Kim Ark.[xxviii] It does not seem unreasonable to conclude that Story’s “sort of postliminy” was also implicitly codified by the Fourteenth Amendment, and thereby carried down to today.
Secondly, notwithstanding nineteenth century American views regarding occupation and sovereignty, American jurists have tended to minimize occupation’s effects upon the citizenship of an occupied territory’s residents. In Shanks v. Dupont, for example the Justice Story observed that British occupation of Charleston during the Revolution did not result in “an absolute change of the allegiance of the captured inhabitants.” Although admitting that such inhabitants did owe some allegiance to the occupying power, this was a mere “temporary allegiance” that “only suspend[ed] their former allegiance” and “did not annihilate their allegiance to the State of South Carolina and make them de facto aliens.”[xxix] Similarly, in his treatise on international law, Maj. Gen. Henry Halleck noted that during occupation of a territory, “the allegiance of the inhabitants…is a temporary and qualified allegiance, which becomes complete only on the confirmation of the conquest….”[xxx] Likewise, Wheaton’s Elements of International Law described the allegiances of an occupied territory’s inhabitants as being “dissolved,” but only “for the time being” while the occupation continued, and noted that if the territory was “retaken by its original sovereign, it reverts to the same state it was in before it was lost.”[xxxi] Hence, even during an era when American jurists tended to conflate conquest & occupation, they nevertheless deemed the latter insufficient to work a change in the allegiance & nationality of its inhabitants.
Third, although international humanitarian law does not explicitly address the relationship between jus soli[xxxii] and military occupation, it does contain some provisions of relevance. Article 45 of the Hague Regulations goes one step further than the aforementioned American jurists, and explicitly states, “It is forbidden to compel the inhabitants of occupied territory to swear allegiance to hostile Power.”[xxxiii] Admittedly, there is a difference between allegiance & citizenship. However, insofar as the former is a prerequisite of the latter, Art. 45 can be read as implicitly condemning any action by the occupier that forcibly alters the citizenship of the occupied territory’s inhabitants. Contrariwise, it also militates in favor of deciding citizenship questions according to the legal regime predating the occupation.
The Fourth Geneva Convention goes further still, by explicitly denying the existence of any allegiance on the part of an occupied territory’s populace towards the occupying power,[xxxiv] and by acknowledging that populace’s continued allegiance to their original sovereign.[xxxv] Such acknowledgements are significant, since Americans have long considered allegiance a sine qua non of citizenship.[xxxvi] If a person born in occupied territory owes no allegiance to the occupying power, then it follows that he cannot be deemed a citizen or subject of that power. More importantly for our purposes, if occupation effects no change in the allegiances of the occupied territory’s residents, then it stands to reason that a person born of those residents would not suffer any change in his allegiance either. This, in turn, implies that one should consider the citizenship laws of the original sovereign as remaining in force even during the occupation. It also militates in favor of applying the law of postliminium to citizenship cases following the occupation’s end.
Hence, it is not necessarily true that occupation of American soil by a hostile occupying power would exclude the children of -born children of citizens or alien friends, born within occupied territory, from birthright citizenship under American law. On the contrary, there are several reasons why such children should be considered natural-born citizens, under the Fourteenth Amendment & the law of postliminium. First, the application of postliminium to citizenship accords with long-standing principles of American citizenship law – as explicitly acknowledged by Justice Story almost two centuries ago, and as since codified by the Citizenship Clause. Second, American law has long denied that occupation alters the citizenship of those residing in occupied American territory. Third and finally, international law with respect to occupation is strongly solicitous of the preexisting allegiances of an occupied territory’s populace, and hostile towards efforts by the occupier to alter such allegiances. For all of these reasons, if American territory is ever subjected to hostile occupation in the future, and questions later arise regarding the citizenship of those born within that territory to citizens or alien friends during the occupation, it would be reasonable to resolve such questions by appealing to the concept of postliminium. In which case, we could therefore consider US jurisdiction over these children to have been “continuously in existence” during the occupation, with the result that such children could indeed be considered “subject to the jurisdiction” of the United States at the time of birth, and thus natural-born citizens of the United States in the eyes of American law.
[i] Bibliographic Note: This note lists sources repeatedly cited in this article:
BLACK’S LAW DICTIONARY (9th Ed. 2009) (hereinafter BLACK).
COMMENTARY ON THE FOURTH GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 303-308 (Jean S. Pictet et al. eds. 1958) (hereinafter GC IV COMMENTARY).
CONG. GLOBE. 39th Cong., 1st Sess. (1866) (hereinafter GLOBE).
Eyal Benvenisti, The Origins of the Concept of Belligerent Occupation, 26 LAW & HIST. REV. 621 (2008) (hereinafter Benvenisti).
Geneva Convention (IV) for the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (hereinafter GC IV).
Romulus A. Picciotti, Legal Problems of Occupied Nations After the Termination of Occupation, 33 MIL. L. REV. 25 (1966) (hereinafter Picciotti).
U.S. DEP’T OF THE ARMY, THE LAW OF LAND WARFARE, FM 27-10 (1956) (hereinafter LAND WARFARE).
[ii] See LAND WARFARE, supra note 1, at 138 (“Occupation…is invasion plus taking firm possession of enemy territory for the purpose of holding it.”). By contrast, “[S]ubjugation or conquest implies a transfer of sovereignty, which generally takes the form of annexation and is normally effected by a treaty of peace.” Id.
[iii] U.S. Const. amend XIV, § 1, cl. 1.
[iv] “Alien friends” are aliens belonging to a country with which the United States is not at war. See James Madison, Report on the Virginia Resolutions, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 546, 554-556 (J. Elliot ed. 1836) (distinguishing between alien friends & alien enemies).
[v] Historically, this question has been answered in the negative. See, e.g., Inglis v. Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99, 156 (1830) (Story, J., dissenting) (“[T]he children of enemies, born in a place within the dominions of another sovereign then occupied by them by conquest are still aliens….”); also United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) (stating that the Fourteenth Amendment excluded from birthright citizenship children of “enemies within and during a hostile occupation of part of our territory”).
[vi] See, generally, 8 U.S.C. §1401 et seq. (2010).
[vii] See 8 U.S.C. §1401(b).
[viii] See 8 U.S.C. §1401(f). Given the probable disorder & civilian casualties resulting from any invasion & occupation, it seems likely that this subsection would be applicable to at least some war orphans.
[ix] See 8 U.S.C. §1401(c) (regarding persons having two citizen parents); also 8 U.S.C. §1401(d) (regarding persons having one citizen parent); also 8 U.S.C. §1401(g) (similar).
[x] See 8 U.S.C. §1404 (persons born in Alaska); also 8 U.S.C. §1405 (persons born in Hawaii). It is unclear to me whether the reach of these provisions is narrowed by 8 U.S.C. §1401(a).
[xi] See 8 U.S.C. §1401(a) (providing that “a person born in the United States, and subject to the jurisdiction thereof” shall be a “citizen of the United States at birth”); also 8 U.S.C. §1402 (similar for Puerto Rico); also 8 U.S.C. §1406(b) (Virgin Islands); also 8 U.S.C. §1407(b) (Guam).
[xii] These exceptions were noted over a century ago by the Supreme Court:
… 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…with the exceptions…of children of foreign sovereigns or their ministers, or born on foreign public ships….
See United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898).
[xiii] BLACK, supra note 1, at 927-928 (defining “Jurisdiction” as “A government’s general power to exercise authority over all persons and things within its territory; esp., a state’s power to create interests that will be recognized under common law principles as valid in other states….”) (citations omitted).
[xiv] LAND WARFARE, supra note 1, at 139 (“[Occupation] presupposes a hostile invasion…as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.”); also Picciotti, supra note 1, at 30 (“[U]pon occupying a country, the belligerent at once is invested with absolute executive, legislative, and judicial authority.”).
[xv] HENRY W. HALLECK, INTERNATIONAL LAW; OR RULES REGULATING THE INTERCOURSE OF STATES IN PEACE AND WAR 781 (1861) (noting that “the national jurisdiction of the conquered power is replaced by that of military occupation….”).
[xvi] Or not. There is precedent for statutes that retroactively declare classes of people to be citizens at birth; in 1937, for instance, certain individuals born in the Canal Zone after 1904 were deemed citizens. See Act of Aug. 4, 1937, § 1, Ch. 563, 50 Stat. 558.
[xvii] See supra note 9.
[xviii] 17 U.S. (4 Wheat.) 246, 254 (1819).
[xix] Benvenisti, supra note 1, at 635-636 (discussing the English view of occupation & conquest).
[xx] Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) (“[W]hen Tampico had been captured, and the State of Tamaulipas subjugated, other nations were bound to regard the country, while our possession continued, as the territory of the United States, and to respect it as such. For, by the laws and usages of nations, conquest is a valid title, while the victor maintains the exclusive possession of the conquered country. The citizens of no other nation, therefore, had a right to enter it without the permission of the American authorities, nor to hold intercourse with its inhabitants, nor to trade with them. As regarded all other nations, it was a part of the United States, and belonged to them as exclusively as the territory included in our established boundaries.”); also Thirty Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cranch) 191, 195 (1815) (“Although acquisitions made during war are not considered as permanent until confirmed by treaty, yet to every commercial and belligerent purpose, they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them.”).
[xxi] Benvenisti, supra note 1, at 636-642 (discussing the evolution of American views regarding occupation, conquest, & sovereignty).
[xxii] State of the Netherlands v. Fed. Res. Bank of N.Y., 201 F.2d 455, 461 (2d Cir. 1953) (citations omitted).
[xxiii] LAND WARFARE, supra note 1, at 138.
[xxiv] Picciotti, supra note 1, at 26.
[xxv] Inglis v. Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99, 156 (1830) (Story, J., dissenting) (emphasis added). Although this statement would appear to contradict the position, taken in both the Court’s opinion & Story’s dissent – that a person born in New York City during its Revolutionary-era occupation by the British was a British subject at birth – this latter situation pertained to the sui generis questions of citizenship & allegiance resulting from the American Revolution, and was thus arguably non-analogous to more general questions of alienage. See Lynch v. Clarke, 1 Sand. Ch. 583, 683 (N.Y. Ch. 1844) (“[C]ases growing out of the anomalous state of allegiance produced by the Revolution, cannot with propriety, be deemed authorities against well established principles, as applicable to the ordinary questions of alienage and allegiance.”).
There are some exceptions which are founded upon peculiar reasons and which indeed illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance, for he is still deemed under the protection of his sovereign and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince. … [T]he children of enemies, born in a place within the dominions of another sovereign then occupied by them by conquest are still aliens….
[xxvii] Id. at 155-156.
[xxviii] 169 U.S. 649, 693 (1898).
[xxix] Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 246 (1830).
[xxx] HENRY W. HALLECK, INTERNATIONAL LAW, OR RULES REGULATING THE INTERCOURSE OF STATES IN PEACE AND WAR 791 (1861).
[xxxi] HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 469 (A. C. Boyd, ed., 3rd ed. 1889).
[xxxii] BLACK, supra note 1, at 942 (defining jus soli as, “The rule that a child’s citizenship is determined by place of birth. This is the U.S. rule, as affirmed by the 14th Amendment to the Constitution.”).
[xxxiii] Hague Convention No. IV Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, Oct. 18, 1907, Art. 45, 36 Stat. 2277. This provision reflected preexisting sentiment regarding compulsory oaths of allegiance. See JOSEPH R. BAKER & HENRY G. CROCKER, THE LAWS OF LAND WARFARE CONCERNING THE RIGHTS AND DUTIES OF BELLIGERENTS 331-333 (1914) (listing various prior authorities condemning such oaths).
[xxxiv] GC IV, supra note 1, art. 68, par. 3 (“The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance.”).
[xxxv] See, e.g., GC IV, supra note 1, art. 98 (permitting interned residents of occupied territory to “receive allowances from the Power to which they owe allegiance”); GC IV, supra note 1, art. 105 (“Immediately upon interning protected persons, the Detaining Powers shall inform them, the Power to which they owe allegiance and their Protecting Power of the measures taken for executing the provisions of the present Chapter.”); GC IV, supra note 1, art. 107 (“If limitations must be placed on the correspondence addressed to internees, they may be ordered only by the Power to which such internees owe allegiance”); GC IV, supra note 1, art. 135 (noting that an occupying power needn’t defray the travel costs of an internee “return[ing] to his country…in obedience to the Government of the Power to which he owes allegiance….”). Similar acknowledgements can be found in the official commentary regarding the Convention. See, e.g., GC IV COMMENTARY, supra note 1, at 304 (“An important point to be noted is that occupation does not involve a transfer of sovereignty and does not sever the ties of allegiance….”); also id. at 346 (“The words ‘duty of allegiance’ [in Art. 68 of the Fourth Geneva Convention] constitute an acknowledgment of the fundamental principle according to which the occupation does not sever the bond existing between the inhabitants and the conquered State.”).
[xxxvi] Inglis v. Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99, 155 (1830) (Story, J., dissenting) (“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.”); JAMES KENT, COMMENTARIES ON AMERICAN LAW 1 (William Kent ed., 9th ed. 1858) (“Natives are all persons born within the jurisdiction and allegiance of the United States.”); Lynch v. Clarke, 1 Sand. Ch. 583, 663 (N.Y. Ch. 1844) (“[B]y 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.”); United States v. Rhodes, 27 F. Cas. 785, 789 (C.C.D. Ky. 1866) (“[A]ll 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.”); Elk v. Wilkins, 112 U.S. 94, 101-102 (1884) (requiring that a person must be born “completely subject to [the United States’] political jurisdiction and ow[e] them direct and immediate allegiance” in order to claim birthright citizenship under the Fourteenth Amendment); United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) (“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….”). See also GLOBE, supra note 1, at 570 (statement of Sen. Morrill) (“[E]very man, by his birth, is entitled to citizenship, and that upon the general principle that he owes allegiance to the country of his birth, and that country owes him protection.”); also id. at 1152 (statement of M. Russell Thayer, “It is a rule of universal law…that they who are born upon the soil are the citizens of the State. They owe allegiance to the State, and are entitled to the protection of the State.”).