Birthright Citizenship and the Fourteenth Amendment
Recently, there arrived in my inbox an email from one H.M. Stuart, inviting me to address the impact of the Fourteenth Amendment upon:
- slaves and their children
- diplomats and their children
- illegal aliens and their children
- corporations, particularly multinational or foreign corporations, and the concept of legal American personhood, particularly in light of the Supreme Court’s recent ruling in Citizens United
This post will deal with the impact of the Citizenship Clause of that Amendment upon the first three categories.
The Citizenship Clause reads as follows:
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 considering the applicability of this provision to the aforementioned classes, we must clarify the meaning of a few terms. First, “persons”. Bouvier’s Law Dictionary, the most commonly used of its genre at the time of the Fourteenth Amendment’s framing, noted in its entry for “persons” that: “when the word ‘Persons’ is spoken of in legislative acts, natural persons will be intended, unless something appear in the context to show that it applies to artificial persons.” There is nothing in the Clause’s context which suggests that “persons” implies corporations; on the contrary, the terms “born” and “naturalized” refer to processes that, as far as I am aware, only happen to natural persons. The Clause’s applicability solely to the latter seems pretty clear to me.
The other term in need of clarification is “jurisdiction”. Black’s Law Dictionary defines it 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….” Hence, a person who is protected by the laws of the United States, and subject to the power of the executive, legislative, & judicial branches thereof, he is therefore “subject to the jurisdiction” of the United States. This is the meaning is also reflected in the Supreme Court decisions of Elk v. Wilkins & United States v. Wong Kim Ark, which are the Court’s leading precedents on the Citizenship Clause. It also reflects the original meaning of the term, based on evidence from the years preceding, following, & contemporaneous with, the Fourteenth Amendment’s framing.
We are now in a position to consider the Fourteenth Amendment’s effect upon the native-born children of slaves, diplomats, and illegal aliens. All are obviously born “in the United States”. But were they (or are they) “subject to the jurisdiction thereof”? It appears they are.
- Slaves/Freedmen: Antebellum caselaw makes clear that slaves were indeed “subject to the jurisdiction” of the United States, whether as persons or property. Most notoriously, this included the Fugitive Slave Act of 1850; however, even in a more mundane case of mail theft, Chief Justice Roger Taney observed, “As a person, [a slave] is bound to obey the law, and may, like any other person, be punished if he offends against it; and he may be embraced in the provisions of the law, either by the description of property or as a person, according to the subject-matter upon which congress [sic] or a state is legislating.” It therefore seems clear that native-born freedmen were indeed made citizens by the Fourteenth Amendment.
- Diplomats: Federal law & the US-ratified Vienna Convention extend diplomatic immunity to children of foreign diplomats. As a result, such children cannot be deemed “subject to the jurisdiction” of the United States; and are therefore ineligible for birthright citizenship under the Fourteenth Amendment.
- Illegal Aliens: Finally, children of illegal aliens are indeed “subject to the jurisdiction” of the United States, to the same extent as any child of a legal immigrant or US citizen is. Unlike children of diplomats, there is no legal provision exempting children of illegal aliens from the sovereign power of the United States. Hence, like children of citizens or legal immigrants, children of illegal aliens are rightly deemed citizens at birth under the Fourteenth Amendment.
Besides diplomats, there are two other categories of persons whom the Citizenship Clause might exclude:
- Children of alien enemies belonging to an invading army of occupation. As previously noted elsewhere, such children would not be subject to American jurisdiction, and as such, would not be encompassed by the Citizenship Clause.
- Children of Native Americans residing in Indian Country. Historically, such children have possessed substantial immunities from federal civil & criminal jurisdiction, owing to the vagaries of federal Indian law. For this reason, they were not deemed “subject to the jurisdiction” of the United States, either during the Fourteenth Amendment’s drafting, or afterwards. Although it is debatable whether this exclusion still applies, given the variegated jurisdictional mess of contemporary Indian law, the question has been rendered moot by a statutory provision granting birthright citizenship to all US-born children of Native Americans.
Although, at first glance, Fourteenth Amendment’s “jurisdiction” loophole would seem to provide a way to deny US citizenship to “anchor babies”, in practice it’s not clear that this would be workable. First, such a denial would likely require an Act of Congress granting such children immunity from federal jurisdiction (along the same lines as that possessed by diplomats). Such immunities, however, would necessarily render such children exempt from arrest, trial, and deportation by federal immigration authorities. Nor would the mechanisms normally employed to sanction wayward diplomats (e.g., persona non grata) apply to illegal aliens, unless their home countries were willing to cooperate in recalling them against their will. Second, it is not clear to me whether such an Act would constitute an unconstitutional bill of attainder. On the key question of whether the proscription imposed by such an Act constituted “punishment,” the historical record yields a mixed bag. On the one hand, outlawry has indeed historically been employed as a method of punishment; on the other hand, as noted above with regard to Indians, diplomats, and invading enemy aliens, jurisdictional exemptions may also be employed for non-punitive reasons. Whether the aforementioned hypothetical Act would be more analogous to the former than the latter…I’m not sure.
 U.S. Const. amend XIV, § 1, cl. 1.
 2 JOHN BOUVIER, A LAW DICTIONARY 333 (11th ed. 1862) (emphasis added) (citations omitted).
 BLACK’S LAW DICTIONARY 927-928 (9th Ed. 2009) (citations omitted).
[Section 1 of the Fourteenth Amendment] contemplates two sources of citizenship, and two sources only: birth and naturalization. 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. …
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.
Elk v. Wilkins, 112 U.S. 94, 101-102 (1884). It is sometimes asserted that, by “political jurisdiction”, the Court was requiring not only subjection to the sovereign power of the United States, but also the absence of foreign allegiance on the part of a child and/or his parents. See, e.g., Lino A. Graglia, Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy, 14 TEX. REV. L. & POL. 1, 9 (2009). Militating against this interpretation, however, was the court’s analogy between children of Indians and those born of aliens outside the legal jurisdiction of the United States; as well as other judicial usages which also treated “political jurisdiction” as a synonym for “jurisdiction” generally. See 112 U.S. 94, 102 (1884); also New York v. Connecticut, 4 U.S. (Dall) 1, 4 n.a (1799) (“[I]n no case, can a specific performance be decreed, unless there is a substantial right of soil, not a mere political jurisdiction, to be protected and enforced.”); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 592 (1832) (“Under this [Indian Commerce] clause of the constitution no political jurisdiction over the Indians, has been claimed or exercised. …. The law acts upon our own citizens, and not upon the Indians, the same as the laws referred to act upon our own citizens in their foreign commercial intercourse.”); New Orleans v. United States, 35 U.S. (10 Pet.) 662, 722 (1836) (“It cannot be insisted that the dedication of this property to public use, whether the title to the thing dedicated became vested in the city or its use only, could withdraw it from the political jurisdiction of the sovereign power.”); Spooner v. McConnell, 22 F. Cas. 939, 946 (C.C.D. Ohio 1838) (“The United States may own land within a state, but political jurisdiction does not follow this ownership. Where jurisdiction is necessary, as for forts and arsenals, a cession of it is obtained from the state.”); United States v. Gratiot, 26 F. Cas. 12, 13 (C.C.D Ill. 1839) (“Where a political jurisdiction is derived, as within the District of Columbia, and over sites for forts and arsenals, the constitution has made provision for a cession of such jurisdiction.”); Passenger Cases, 48 U.S. (7 How.) 283, 422 (1849) (“Though in its transit [a ship] enters the territory of a State, the political jurisdiction of the State cannot interfere with it by taxation in any way until the voyage has ended….”); 50 U.S. (9 How) 407, 414 (1850) (“[T]he statute of limitations of the country in which the suit is brought may be pleaded to bar a recovery upon a contract made out of its political jurisdiction, and that the limitation of the lex loci contractus cannot be.”); Hill v. Tucker, 54 U.S. (13 How.) 458, 466 (1851) (“When within the same political jurisdiction, however many executors the testator may appoint, all of them may be sued as one executor for the debts of the testator….”); Booth v. Clark, 58 U.S. (17 How.) 322, 334 (1854) (deciding whether a receiver appointed by a New York court was “permitted to sue in another political jurisdiction.”); Florida v. Georgia, 58 U.S. (17 How.) 478, 510 (1854) (referring to “the political jurisdiction of Florida” over land owned by the United States within the state’s territory); Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (Curtis, J., dissenting) (“Ordinarily, when the territory of a sovereign power is spoken of, it refers to that tract of country which is under the political jurisdiction of that sovereign power.”); Mellus v. Thompson, 16 F. Cas. 1334, 1335 (C.C.D. Mass. 1858) (“[I]t is well settled that [a grant of administration] does not extend to other political jurisdictions.”); Hayden v. Noyes, 5 Conn. 391, 395 (1824) (“That the place where the clams and oysters were taken by Hayden, was within the political jurisdiction of the town of Lyme, if not within the limits of its charter, is indisputable.”); Gibson v. Armstrong, 46 Ky. (7 B. Mon.) 481, 512 (1847) (describing religious organizations in Canada as being “under a foreign political jurisdiction.”); Johnson v. Gordon, 4 Cal. 368, 373 (1854) ((“[Conflict of jurisdiction] has arisen from the earliest times within the same political jurisdiction.”); Haight v. City of Keokuk, 4 Iowa 199, 213 (1856) (noting that, when Congress granted land to certain Indians, “The political jurisdiction [over the land] remained in the United States.”); Town of Milwaukee v. City of Milwaukee, 12 Wis. 93, 103 (1860) (speaking of the “severance of real property from the political jurisdiction of the municipal corporation to which it belongs….”); Moore v. Shaw, 17 Cal. 199, 218-219 (1861) (“The minerals [of gold and silver] do not differ from the great mass of property, the ownership of which may be in the United States, or in individuals, without affecting in any respect the political jurisdiction of the State.”); Whitford v. Panama R.R. Co., 23 N.Y. 465, 471 (1861) (“Prima facie, all laws are coextensive, and only coextensive with the political jurisdiction of the law-making power.”) (emphasis in original) (citations omitted); The Amy Warwick, 1 F. Cas. 808, 810 (D. Mass. 1862) (“Titles…to political jurisdiction acquired during the war…may indeed survive the war. The holder…may permanently exercise…all the rights which appertain to his title; but they must be rights only of…sovereignty….”); Petersen v. Chemical Bank, 32 N.Y. 21, 39 (1865) (“[N]either an executor or administrator, appointed in a foreign political jurisdiction, can maintain a suit in his own name in our courts.”); Burbank v. Conrad, 96 U.S. 291, 312 (1877) (“…law can have no authority over property which has its fixed seat in another political jurisdiction, and which cannot be tried but before the courts and according to the laws where it is situated.”); Minnesota v. Oleson, 5 N.W. 959, 960 (Minn. 1880) (Cornell, J., concurring) (“The United States and the state is each an independent political jurisdiction, and, from necessity, each must have power to protect itself, and to define and punish offences against its jurisdiction and sovereignty, without regard to what may be done by the other.”); Lincoln v. Davis, 19 N.W. 103, 108 (Mich. 1884) (“[T]he United States, as sovereign, had political jurisdiction of the whole area, including the navigable waters of the Great Lakes, and when the State was admitted into the Union this political jurisdiction devolved upon the State….”); Ft. Leavenworth R.R. Co. v Lowe, 114 U.S. 525, 540 (1885) (“The jurisdiction of the United States extends over all the territory within the States, and, therefore, their authority must be obtained, as well as that of the State within which the territory is situated, before any cession of sovereignty or political jurisdiction can be made to a foreign country.”); Clark v. Hills, 2 S.W. 356, 357 (Tex. 1886) (“…Texas, in defining her boundaries, claimed civil and political jurisdiction to the Rio Grande river; but this jurisdiction was never acknowledged by Mexico till the treaty of Guadalupe Hidalgo, in 1848.”); McAllister v. United States, 141 U.S. 174, 187 (1891) (“the judicial power in the Territories…ought to have the guaranties that are provided elsewhere within the political jurisdiction of the nation for the independence and security of judicial tribunals….”); Stevens v. Thatcher, 39 A. 282, 283 (Me. 1897) (“Notwithstanding any treaties with Indians upon the territory of [Maine] the political jurisdiction of the state includes every person, and every acre of land within its boundaries.”).
 United States v. Wong Kim Ark, 169 U.S. 649 (1898).
 See, e.g., Matthew Ing, Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause (2010), available at http://ssrn.com/abstract=1653650. Admittedly, some “consensualist” scholars argue that “jurisdiction” was originally understood to require not only subjection to American sovereign power, but also undivided allegiance to the United States on the part of parents and their children. See, e.g., William Ty Mayton, Birthright Citizenship and the Civic Minimum, 22 GEO. IMMIGR. L.J. 221 (2008). However, evidence from the framing of the Fourteenth Amendment, as well as the years preceding & following that time, is ultimately incompatible with the consensualist interpretation. See, e.g., Ing, supra.
 Act of Sept. 18, 1850, Ch. 60, 9 Stat. 462.
 United States v. Amy, 24 F. Cas. 792, 810 (C.C.D. Va. 1859).
 22 U.S.C. § 254b (extending the “privileges and immunities specified in the Vienna Convention” to family members of diplomats sent by any state not a party to the Convention).
 Vienna Convention on Diplomatic Relations art. 37(1), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 (granting diplomatic immunity to “members of the family of a diplomatic agent forming part of his household….”).
 As the Supreme Court noted in 1812,
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other…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.
The Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 144 (1812).
 A recent case illustrative of this fact was that of Kebin Reyes, a native-born child who accompanied his illegal alien father when the latter was arrested by Immigration and Customs Enforcement. Although it is arguable whether Reyes was actually detained by ICE, it is clear that, during his encounter with ICE, he was indeed subject to the sovereign power (and hence the jurisdiction) of the United States, with only his status as a US citizen – not his father’s status as an illegal alien – forestalling his arrest & deportation. See Problems with ICE Interrogation, Detention and Removal Procedures: Hearing Before the House Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, 110th Cong. 8 (2008) (statement of Gary E. Mead, Deputy Director, Office of Detention and Removal Operations, U.S. Immigration and Customs Enforcement, Department of Homeland Security) (stating that Reyes “was never detained but he was instead transported to an ICE office until custody arrangements could be made for him.”); also First Amended Complaint at 4, Reyes v. Alcantar, No. 07-02271 (N.D. Cal. Sept. 16, 2008) (alleging that ICE agents “seized Kebin [Reyes], a United States citizen, and took him into their custody, without lawful cause and without a warrant for his arrest….”). Also illustrative of Reyes’ subjection to federal civil jurisdiction was the lawsuit he filed in federal court, alleging that the aforementioned incident violated his constitutional rights. See id. at 2.
 Avenging Sword, Alien Enemies, Occupation, & Birthright Citizenship, ALEXANDRIA (Jun. 1, 2010), http://aleksandreia.wordpress.com/2010/06/01/alien-enemies-occupation-birthright-citizenship/.
 U.S. DEP’T OF THE ARMY, THE LAW OF LAND WARFARE, FM 27-10, at 143 (1956) (“Military and civilian personnel of the occupying forces and occupation administration and persons accompanying them are not subject to the local law or to the jurisdiction of the local courts of the occupied territory….”). This would not apply to children born to prisoners of war held by American military forces, who would be subject to American jurisdiction to the same extent as persons born of citizens or other aliens aboard a US military installation would be.
 Not until the late-19th century was did reformers agitate – unsuccessfully – for the extension of civil jurisdiction over Indians. See FRANCIS PAUL PRUCHA, THE GREAT FATHER: THE UNITED STATES GOERNMENT AND THE AMERICAN INDIANS 678-681 (1984). Prior to such agitation, the absence of such jurisdiction had been affirmed in Karrahoo v. Adams, 14 F. Cas. 134 (C.C.D. Kans. 1870).
 Federal jurisdiction extended over crimes involving non-Indians, except in cases where tribal law had punished the Indian perpetrators prior to federal prosecution. See Act of Mar. 3, 1817, Ch. 92, § 2; also Act of Mar. 27, 1854, Ch. 26, § 3, 10 Stat. 269, 270. Intra-Indian crimes were explicitly exempted from federal jurisdiction. Act of Jun. 30, 1834, Ch. 161, § 25, 4 Stat. 729, 733 (“Provided, The [federal criminal laws in effect in Indian country] shall not extend to crimes committed by one Indian against the person or property of another Indian.”) (emphasis in original). Only after enactment of the Major Crimes Act in 1885 was federal jurisdiction generally extended over certain intra-Indian crimes. See Act of Mar. 3, 1885, Ch. 341, § 9, 23 Stat. 362, 385.
 During Senate debate regarding the Citizenship Clause, Fourteenth Amendment supporters repeatedly cited the jurisdictional exemptions of federal Indian law to explain why the provision would not apply to native-born Indian children. See, e.g., CONGRESSIONAL GLOBE. 39th Cong., 1st Sess., at 2893 (1866) (statement of Sen. Trumbull, “Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means….If we want to control the Navajoes, or any other Indians…how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? … Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them.”); also id. at 2894 (statement of Sen. Trumbull, “…[T]he Senator from Maryland, if he will look into our statutes, will search in vain for any means of trying these wild Indians [sic]….We have had in this country, and have to-day, a large region of country within the territorial limits of the United States, unorganized, over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indians [sic] roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them.”); also id. at 2895 (statement of Sen. Howard, stating that “jurisdiction,” as employed in the Citizenship Clause, implied “a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department”; and that “an Indian belonging to a tribe, although born within the limits of a State” was not “subject to this full and complete jurisdiction,” because such an Indian “is subject for crimes committed against the laws or usages of the tribe to the tribe itself, and not to any foreign or other tribunal.”); also id. at 2897 (statement of Sen. Williams, analogizing the immunities of Indians to those of foreign diplomats).
 Elk v. Wilkins, 112 U.S. 94 (1884); also MATTHEW CARPENTER, EFFECT OF THE FOURTEENTH AMENDMENT UPON INDIAN TRIBES, S. REP. NO. 41-268 (1870) (“[T]he [United States] Government has carefully abstained…from punishing crimes committed by one Indian against another in the Indian country. Volumes of treaties, acts of Congress almost without number, the solemn adjudications of the highest judicial tribunal of the republic, and the universal opinion of our statesmen and people, have united to exempt the Indian…from the operation of our laws, and the jurisdiction of our courts.”).
 Robert N. Clinton, Development of Criminal Jurisdiction Over Indian Lands: The Historical Perspective, 17 ARIZ. L. REV. 951, 962-972 (1975) (discussing 20th-century developments in Indian law with respect to jurisdictional questions).
 8 U.S.C. §1401(b) (granting birthright citizenship to any “person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe…”).
 James C. Ho, Defining American: Birthright Citizenship and the Original Understanding of the Fourteenth Amendment, 9 GREEN BAG 2D 367, 369 (2006) (“[A]liens cannot immunize themselves from U.S. law by entering our country in violation of Title 8. Indeed, illegal aliens are such because they are subject to U.S. law.”) (emphasis in original).
 The only sanction recognized by the Vienna Convention for dealing with non-cooperative sending states is refusal to recognize a person declared persona non grata as a member of the mission. Vienna Convention on Diplomatic Relations art. 9, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95.
 U.S. Const art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”). The current literature regarding the original meaning of this provision yields a mixed bag. Raoul Berger has argued that “bill of attainder,” as originally understood, did not encompass “bills of pains and penalties” which legislatively-but-extrajudicially imposed non-capital penalties upon persons. Duane Olster has more recently argued that the Constitutional prohibition was originally understood to encompass bills of pains & penalties as well as classic bills of attainder. Compare Raoul Berger, Bills of Attainder: A Study of Amendment by the Court, 63 CORNELL L. REV. 355 (1978) with Duane L. Ostler, Bills of Attainder and the Formation of the American Takings Clause at the Foundation of the Republic, 32 CAMPBELL L. REV. 227, 265-267 (2010).
 In particular, outlawry was used by English courts to compel appearances by absent defendants. See, e.g., 3 WILLIAM BLACKSTONE, COMMENTARIES 283-284 (1765). It was also employed as a punishment for treason and other crimes. See 4 COMMENTARIES 373-374 (1765).