A number of posts have discussed birthright citizenship.
We are all familiar with the first sentence of the 14th Amendment: “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.” Unfortunately, my friends have misconstrued the phrase “subject to the jurisdiction thereof” in the amendment’s text. To describe their argument fairly, Claremont scholars read the phrase as referring to someone whose parents are already part of the American political community, such as a citizen or permanent resident alien.
I think their reading takes a text with a defined legal meaning at the time of the 14th Amendment’s ratification and reads into it a deeper political theory that it does not bear. I don’t blame Claremont scholars for this—they are trained political theorists, after all. Sometimes, however, Claremont scholars seem to be engaged in a competition to find deeper political theories lurking in places where no one thought they resided. But sometimes a cigar is just a cigar. And in this case, the cigar is just the use of standard common law legal concepts in the interpretation of the constitutional text.
Under the common law and international law of the 18th and 19th centuries, there were discrete categories of individuals who could be present on U.S. territory but would not be considered subject to our jurisdiction. This included diplomats, occupying armies, and Indians. Diplomats had this status because of the immunity we reciprocally provide for similar benefits for our diplomats abroad. Occupying armies (which would not have been such an unusual occurrence during the Civil War) were not under U.S. jurisdiction, because they sat on territory over which the U.S. had a legal claim, but not actual control. Indians fell into this category too because our Constitution, according to Chief Justice John Marshall, recognized tribes “as domestic dependent nations” that enforced their own laws in the territory they occupied. Hence the 14th Amendment’s language excluding from automatic citizenship the children of the parents within these three categories.
