Reply #82: How so?

[county worker]

2/29/2008 Testimony by James C. Ho during the joint committee hearing to examine the issue of birthright citizenship and House Bill 281 by Representative Berman. (H.R. 28, 80th Leg., Reg. Sess. (Tex. 2007).)

The U.S. Constitution speaks directly to the issue of birthright citizenship.7 It makes clear that birthright citizenship is a matter of constitutional right, no less for the U.S.-born children of unlawful aliens and undocumented persons than for the descendants of passengers of the Mayflower. I reach this conclusion based on the text of the Constitution, common law history, legislative history, and U.S. Supreme Court precedent.

We begin—as we always should—with the text of the Constitition. The first sentence of the Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . .”8 The motivating purpose of this amendment was to overturn the notorious U.S. Supreme Court decision in Dred Scott.9 But the amendment was drafted broadly to guarantee citizenship to virtually everyone born in the United States.10 The critical language of the Fourteenth Amendment is the phrase “subject to the jurisdiction thereof.”11 Proponents of repealing birthright citizenship argue that this language excludes all non-citizens—both lawful and unlawful—because “subject to jurisdiction” means allegiance.12 They point out that non-citizens don’t swear allegiance to the United States; they swear allegiance to their home country.13


Respectfully, I don’t think that that is a reasonable reading of the text. I would submit that the plain meaning of “subject to jurisdiction” is rather straightforward. It simply means that one must have a duty to obey U.S. law. When a person is “subject to the jurisdiction” of a court of law, that person is required to obey the orders of that court. When a company is “subject to the jurisdiction” of a government agency, that company is required to obey the regulations promulgated by that agency. The meaning of the phrase is simple: One is “subject to the jurisdiction” of another whenever one is obliged to obey the laws of another.14 Simply put, the test is obedience, not allegiance.

It is also worth observing that if the drafters had intended to require allegiance, rather than obedience, they could have said so. How easy it would have been for them to state explicitly that only

Of course, the phrase “subject to jurisdiction” must mean something. Otherwise, it would serve no purpose.15 Under the interpretation I put forth, it does serve a purpose. The “jurisdiction”requirement excludes only those individuals who are not required to obey U.S. law. This concept—like much of early U.S. law—derives from English common law. Under the common law, neither foreign diplomats nor enemy soldiers are legally required to obey our law. They enjoy diplomatic immunity or combatant immunity from our laws.16 As a result, their U.S.-born offspring are not entitled to birthright citizenship.

This understanding is also confirmed by the Congressional debates surrounding the Fourteenth Amendment. Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship, but no one disputed the amendment’s meaning.17 In fact, opponents of the amendment conceded—indeed, they warned—that the language of the Citizenship Clause would guarantee citizenship to the children of those who owe the U.S. no allegiance. And supporters of the amendment agreed that only members of Indian tribes, ambassadors, foreign ministers, and others who are not “subject to our laws” would fall outside the guarantee of birthright citizenship.

This interpretation is further confirmed by U.S. Supreme Court precedent.18 In 1898, the Court held in United States v. Wong Kim Ark that a U.S.-born child of Chinese immigrants was constitutionally entitled to citizenship.19 The Court noted that “he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory . . . including all children here born of resident aliens.”20 The Court has since reiterated this view in subsequent decisions, applying this principle specifically to the children of undocumented persons. In Plyler v. Doe, a majority of justices concluded—and all four dissenting justices agreed—that birthright citizenship under the Fourteenth Amendment “extends to anyone. . . who is subject to the laws of a State,” including the U.S.-born children of “illegal aliens.”21 And in INS v. Rios-Pineda, the Court unanimously observed that a child born to an undocumented immigrant was in fact a citizen of the United States.22

Footnotes

7. U.S. CONST. amend. XIV, § 1.
8. Id.
9. See The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 73 (1873) (citing Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393 (1857)) (stating that the Fourteenth Amendment “overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States”).
10. See United States v. Wong Kim Ark, 169 U.S. 649, 676 (1898); see also The Slaughter-House Cases, 83 U.S. (16 Wall.) at 73.
11. U.S. CONST. amend. XIV, § 1.
12. See, e.g., John C. Eastman, Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11, 42 U. RICH. L. REV. 955, 957–58 (2008).
13. See id. at 115–17.
14. See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 160–61 (2005) (Scalia, J.,dissenting).
15. Cf. Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (“he Court will avoid areading which renders some words altogether redundant.”) (citing United States v. Menasche, 348 U.S. 528, 538–39 (1955)).
16. See Abdulaziz v. Metro. Dade County, 741 F.2d 1328, 1329–30 (11th Cir. 1984) (diplomatic immunity); United States v. Lindh, 212 F. Supp. 2d 541, 553 (E.D. Va. 2002) (combatant immunity).
17. See CONG. GLOBE, 39th Cong., 1st Sess. 2892–97 (1866) (debating ratification of the Fourteenth Amendment).
18. This interpretation has also been affirmed by the Executive Branch under Presidents of both parties, including Presidents Ronald Reagan and Bill Clinton. See, e.g., Brief for the United States as Amicus Curiae Supporting Appellees, Plyler v. Doe, 457 U.S. 202 (1982) (No. 80-1538), 1981 U.S. S. Ct. Briefs LEXIS 2363 (President Reagan); 19 Op. Off.
Legal Counsel 340, 341–42 (1995) (President Clinton).
19. See 169 U.S. 649, 705 (1898).
20. Id. at 693.
21. 457 U.S. 202, 215 (1982); id. at 243 (Burger, J., dissenting).
22. 471 U.S. 444, 445, 446 (1985).