The constitutional rule of birthright citizenship has returned to the US Supreme Court for the first time in over a century. The importance of the issue cannot be overstated: It goes to the heart of what it means to be a nation. At its core are the concepts of sovereignty and the social compact. Does the Constitution require that America accept as citizens all children born within its territory, including to parents who came to the country illegally or transiently, and even if those parents and children return to their home countries? Does it require treating as citizens the hundreds of children born via American surrogates to a small handful of wealthy Chinese nationals who have never set foot in the United States?
The Fourteenth Amendment declares that all persons born in the United States “subject to the jurisdiction thereof” are citizens, a provision that aimed at ensuring citizenship to the formerly enslaved. The conventional wisdom is that this clause prevents the political branches a century and a half later from deciding upon the citizenship of children born to such foreign parents even if, for example, they are illegally or transiently in the country.
According to this view, the longstanding rule of the common law required, and the language of the Fourteenth Amendment requires, citizenship for any child born on American soil by virtue of birth on that soil. Narrow historical exceptions existed only for the children born to ambassadors or foreign soldiers. In the American context, the common law and the amendment’s drafters also contemplated an exception for Indian children born in Indian country to parents still subject to their tribal authorities. The conventional explanation is that these groups remain subject to the commands and sovereign authority of another nation and the United States does not (or did not, in the case of Indian tribes) exercise its sovereign authority over them. Another theory is the fiction that ambassadors and foreign armies (and the Indian tribes) are on foreign soil, even when within American territory.
The conventional wisdom is wrong. As the Supreme Court considers the case, it must understand the true history of the birthright rule. Although the common-law rule did exclude ambassadors and foreign armies as well as the Indian tribes, the underlying reason had nothing to do with a fiction of extraterritoriality. Nor did it have to do expressly with another nation continuing to exercise sovereignty, although that did relate to the rule. Rather, the rule was different: it was based on a mutual compact between the king and his subjects. At common law, one was a birthright subject if born both on the king’s soil and under the king’s protection, and more precisely to parents under the king’s protection. The sovereign’s protection came with a condition: owing the sovereign allegiance. This exchange of allegiance and protection defined this mutual compact between sovereign and subject.
In the words of William Blackstone, the “original contract of society” was that “the whole should protect all its parts, and that every part should pay obedience to the will of the whole”; or “that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community.” Stated another way, men leave the state of nature and agree to obey sovereign authority in exchange for that sovereign’s agreement to protect individuals in their natural rights, remedy the defects of the state of nature, and promote the good of the whole.
That is how revolutionary-era Americans understood the rule, as when the Continental Congress stated, “[W]e had been bound to [the King] by allegiance,” but “this bond was now dissolved by his assent to the last act of Parliament, by which he declares us out of his protection, . . . it being a certain position in law that allegiance and protection are reciprocal, the one ceasing when the other is withdrawn.” Or in the words of the Declaration of Independence, the king had “abdicated Government here, by declaring us out of his Protection.”
Ambassadors and foreign soldiers were under the protection of another sovereign. They therefore owed no allegiance to the local sovereign. That explains why their children born on the king’s soil were not birthright subjects of the king. Foreign soldiers and ambassadors were not, however, the only persons outside the king’s protection. The historical record shows that to come under the king’s protection required the king’s consent to enter the realm. There is no reason in logic, law, or history to have excluded ambassadors and foreign soldiers, but not aliens who came to the realm illegally.
To be clear, aliens who came into the realm with the sovereign’s permission were subject to this mutual compact. (How that translates to lawful temporary visitors shall be considered subsequently.) Aliens, the common-law sources demonstrate, were under the temporary and local protection of the sovereign—temporary and local because that protection existed only while the alien remained in the realm—and in exchange those aliens owed the sovereign a temporary and local allegiance. Any of their children born in the realm were generally considered natural-born subjects. Thus, at common law, although the citizenship of the parents did not matter, whether they had entered the mutual compact and exchanged allegiance and protection with the sovereign did. Mere birth on the sovereign’s soil had never been the rule. Birth was not enough.
“Birth was not enough.”
Not only was the touchstone of the common-law rule whether the parents were under the protection of the sovereign—and had entered into the social compact with the sovereign—but protection was also a necessary condition for the applicability of much of the sovereign’s jurisdiction. Without protection, one could not sue or be sued in the sovereign’s courts. One could be criminally prosecuted, perhaps, but could not have the benefit of any of the sovereign’s civil laws. Protection and jurisdiction were, in this sense, almost synonymous. An alien not under the sovereign’s protection was not subject to that sovereign’s jurisdiction.
The rule that the parents of a child born had to be under the protection of the sovereign was established in the leading common law sources. In Calvin’s Case, a 1608 decision reported by Sir Edward Coke, Coke explained the mutual and reciprocal obligations of allegiance and protection: “Between the Sovereign and the subject there is without comparison a higher and greater connexion: for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his subjects.” This creates a duplex et reciprocum ligamen—a dual and reciprocal tie. “Protection draws subjection, and subjection draws protection.” William Blackstone’s commentaries, influential on the American founding generation, similarly explained the connection: “Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.”
It is true that allegiance generally followed from the fact of birth because from that moment the infant was under the protection of, and therefore would owe an allegiance to, the king. A child born in the realm to a natural-born subject would thus also be a natural-born subject because his parents would have been under the sovereign’s protection and within the sovereign’s allegiance. The child would therefore receive protection at birth, owe future allegiance, and any child born in the next generation would also receive protection in turn.
Aliens, however, did not receive any protection in infancy; they owed allegiance immediately upon entering the realm in exchange for the immediate protection they were to receive while present there. This type of allegiance, Coke reported, was a local allegiance “wrought by the law.” It applies “when an alien that is in amity cometh into England, because as long as he is within England, he is within the King’s protection; therefore so long as he is here, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other.”
This local allegiance, both Coke and Blackstone wrote, was sufficient to make the parents subjects of the king while they were in the realm, such that their children born in the realm would be natural-born subjects. This “local obedience being but momentary and uncertain,” Coke wrote, “is yet strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject.” In other words, an alien who exchanged allegiance for protection becomes a subject of the king while in the king’s lands. And that alien’s child becomes a natural-born subject.
Coke then explained why the rule did not apply to the children of invading armies, even though they were born on the king’s soil. It is nec cœlum, nec solum—neither the climate nor soil—that makes a subject, but rather being born “under the ligeance of a subject” and “under the protection of the King.” To be a natural born subject, one must have been born under the ligeance—connection—of a subject; that is, the child had to be born to parents under the king’s protection. Soldiers of invading armies were not under the king’s protection and any children born were not birthright subjects.
Blackstone explained the importance of parental status in the context of ambassadors. “The children of the king’s ambassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent,” Blackstone wrote, “so, with regard to the son also, he was held . . . to be born under the king of England’s allegiance, represented by his father the ambassador.” Thus one sees that the desideratum for the birthright rule with respect to aliens is that the parents of any child born must be under the protection (and therefore within the allegiance) of the sovereign.
“The American rule was no different.”
The American rule was no different. In the leading case, Inglis v. Trustees of Sailor’s Snug Harbor, which arose out of the American Revolution, the Supreme Court explained: “The doctrine of allegiance rests on the ground of a mutual compact between the government and the citizen or subject . . . . It is the tie which binds the governed to their government, in return for the protection which the government affords them.” Justice Joseph Story, in a separate opinion in the case, explained explicitly the importance of the parents: “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.”
In short, the common-law rule had never been mere birth on soil. It had always been birth on the sovereign’s soil to parents under the sovereign’s protection. Children born to ambassadors and invading armies were not “exceptions” to the rule of birth on soil; rather, they fell outside the scope of the rule itself because they were not born to parents under the sovereign’s protection. They were not born to parents who had entered into a mutual compact with the sovereign. Their parents had not exchanged allegiance for protection.
It is one thing to conclude that ambassadors and invaders in service to a foreign sovereign were not under the sovereign’s protection. But what about aliens who simply came unlawfully? Were they under the king’s protection merely by virtue of being present in the realm, and therefore owed the king allegiance, despite having disobeyed the king’s laws by entering? It is unclear why such a compact would have formed in the first place when the very act by which an alien attempted to subject himself to this contract was a violation of the sovereign’s will. Contracts, by definition, are not entered into unilaterally.
“Contracts, by definition, are not entered into unilaterally.”
But more than intuition supports this claim. There is a rich history revealing that for centuries, to come into the realm of England required the king’s consent in a formal legal document called a safe-conduct. Safe-conducts not only granted aliens permission to enter, but also explicitly extended the king’s protection to the alien. Blackstone summarized safe-conducts as follows: “During the continuance of any safe-conduct, either express or implied, the foreigner is under the protection of the king and the law.”
Eventually, the king’s protection was granted statutorily and more generally to aliens from friendly nations. Magna Carta guaranteed to friendly aliens “safe and secure conduct” to engage in trade “unless they have been previously and publicly forbidden.” The Carta Mercatoria of 1303 was a general grant of safe-conduct to merchants from several European provinces. The charter specifically guaranteed them “protectione nostra.” A 1353 statute from the twenty-seventh year of the reign of Edward III similarly provided that “Merchant Strangers . . . may safely and surely under our Protection and safe-conduct come and dwell in our said Realm.”
It is no surprise, then, that Coke, Blackstone, and other common law sources presumed that friendly aliens were under the protection of the king. Such aliens no longer needed specific safe-conducts to ensure they were within the king’s protection. The sovereign’s consent, expressed in various statutes, already guaranteed that protection. Their children born in the realm were subject to the birthright rule.
The history of safe-conducts and statutory permission strongly suggests that aliens who entered or remained without or contrary to the consent of the sovereign would not have been under the protection of the sovereign. To my knowledge, no case in England or America before the American Civil War expressly addressed the question. A handful of cases arising from the War of 1812 did, however, address the situation of non-hostile subjects of England, which was then at war with the United States. The American authorities concluded that even such alien enemies—alien enemies merely because they were subjects of countries that happened to be at war with America—could be under the protection of the United States. But they would only be under that protection if their presence was with the consent of the United States.
In Clarke v. Morey, the renowned Chancellor James Kent addressed a defendant’s argument that he did not have to repay a debt because the plaintiff was an enemy alien, being a British subject during the war. Kent pointed out that under British law, alien enemies with permission to stay Britain were under the protection of the nation—and subject to its domestic jurisdiction and could sue and be sued like anyone else. So too in America: “The law grants permission to the alien to remain, though his sovereign be at war with us. A lawful residence implies protection, and a capacity to sue and be sued.”
“A lawful residence implies protection. An unlawful residence does not.”
In the case of one Charles Lockington, the Chief Justice of Pennsylvania, subsequently affirmed unanimously by the full state supreme court, also addressed the rights of enemy aliens during the war. Lockington was a British subject who, pursuant to presidential proclamation under the Alien Enemies Act of 1798 and the rules of the local marshal, was required to remove to Reading, away from the coast. He was found in Philadelphia, however, and arrested. The Chief Justice denied Lockington’s writ of habeas corpus. As an alien enemy who had been proscribed by the president’s proclamation, he was in the same position as a prisoner of war: “He has no municipal rights to expect from us. We gave him no invitation, and promised him no protection.” Here again the connection between consent and protection—and jurisdiction, to which we shall return presently—is evident.
The Supreme Court seems to have agreed with this rule. In Wong Kim Ark, it held that Wong Kim Ark’s parents “are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens residing in the United States.”
In sum, a lawful residence implies protection. An unlawful residence does not. It would seem to follow that at common law, illegally present aliens would not have been under the protection of the king and would have fallen outside the scope of the birthright rule. They had not entered into the necessary mutual compact—they had not exchanged allegiance and protection—and their children would not have been birthright subjects.
The question respecting temporary visitors—or temporary sojourners, to use the older term—is more difficult. American judges and treatise writers rarely discussed birthright citizenship in the context of temporary sojourners. Most aliens who came to the United States came to stay. The evidence that does exist, however, suggests that whether temporary sojourners would have been included in the rule of birthright citizenship was at best unsettled. They were under the temporary and local protection of the sovereign, and for that reason seemed covered by the common-law rule. Thus in the prominent antebellum case of Lynch v. Clarke, the Assistant Vice Chancellor of New York’s Court of Chancery concluded that Julia Lynch was an American citizen although born to temporary sojourners who had returned to Ireland shortly after her birth.
“Most aliens who came to the United States came to stay.”
Other cases and sources are in sharp tension with this single-judge decision. In Ludlam v. Ludlam, from 1860, the intermediate appellate court addressed the common-law rule applicable to a child born to an American citizen sojourning abroad, the mirror image of the problem at issue in Lynch.
The judges concluded in a 2-1 decision that the child was an American citizen. “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,” the majority concluded, that subject “continues under the protection of the sovereign power” of his permanent allegiance and “so he retains the privileges and continues under the obligations of [that] 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.”
Other antebellum and postbellum evidence demonstrates that several scholars, judges, and officials thought that temporary sojourners were or ought to have been excluded from birthright citizenship. Justice Story, in his Commentaries on the Conflict of Laws, wrote that a “reasonable qualification” to the rule of birthright citizenship is “that it should not apply to the children of parents, who were in itinere in the country, or abiding there for temporary purposes, as for health, or occasional business.” He admitted, however, that such a rule was not “universally established.”
An antebellum treatise by Henry St. George Tucker discussed the “common law doctrine of allegiance and alienage.” He then stated the traditional rule that birth creates citizenship. “But,” he added, “though a child be born in the country, yet if both his parents were strangers not designing a permanent change of country, it would be sufficiently obvious, that, as he must follow the condition and succeed to the rights of his parents, he would on the principles of natural reason be considered as much a stranger to the country as his father.”
Of particular importance are the precedents from the military authorities in Louisiana during the Civil War. The question was whether the Union Army could conscript children born in Louisiana to French parents. If they were citizens by birth, it would seem obvious they could be conscripted. In 1865, the Union commanding general in the Department of the Gulf stated that his opinion “has always been that when parents of foreign birth become permanently domiciled in the US that children born in this country are citizens by birth and liable to the duties and entitled to the privileges of American Citizens.” Similarly, in 1863, the judge of the provost court in the Department of the Gulf wrote that to avoid conscription despite birth on US soil, petitioners would have to establish that neither parent “was born in the United States” nor “resided in the United States more than twenty-one years.” Apparently, these military authorities did not think mere birth on American soil to temporary visitors was sufficient to create the consequential obligation of citizenship that was military conscription.
The Fourteenth Amendment’s phrase, “subject to the jurisdiction” of the United States, likely had similar legal effect to the understanding of the narrower birthright rule just articulated. The Fourteenth Amendment was intended to have identical effect to the Civil Rights Act of 1866—which provided citizenship to persons born in the United States “and not subject to any foreign power”—but to clarify that Native Americans still subject to tribal authority were excluded. Specifically, the Civil Rights Act excluded “Indians not taxed,” which was a constitutional term taken from the Constitution’s Census and Apportionment Clause. This created confusion as to whether property was a test for citizenship, leading the drafters of the Fourteenth Amendment to simplify the citizenship language with the phrase “subject to the jurisdiction thereof.”
Confusion still ensued, however, because the Indian tribes were subject to US jurisdiction in many respects. They were within US territory, and they were even subject to some degree of US criminal jurisdiction. For example, the General Crimes Act of 1817 established federal court jurisdiction over crimes committed within tribal territory in which one of the parties was a non-tribal member. They were also subject to the U.S. government’s military powers. Thus, Senators Trumbull and Howard, the leading drafters, explained that the phrase meant a “full and complete jurisdiction,” a jurisdiction “coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” Tribal members were excluded because “although born within the limits of a State,” they were not “subject to this full and complete jurisdiction.” For example, “The United States courts have no power to punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe.”
“Tribal members were excluded.”
This jurisdictional language was consistent with another prominent antebellum case by Chancellor Kent. The Indian tribes are “placed under our protection, and subject to our coercion so far as the public safety required it, and no further,” Kent wrote, demonstrating again the connection between protection and jurisdiction (coercion). Neither the states nor the United States, he continued, interfere “with the disposition, or descent, or tenure of their property, as between themselves,” or “prove[] their wills,” or apply the school and poor laws, or subject them to the “laws of marriage and divorce” or to the “laws of the United States, against high treason.” Thus, they were not birthright citizens. Rather, “though born within our territorial limits, the Indians are considered as born under the dominion of their own tribes.” In other words, they were under the partial protection and partial jurisdiction of the United States, but not its full and complete protection and jurisdiction.
The jurisdictional language was also consistent with the birthright rule respecting ambassadors and invading armies. Ambassadors were subject at best to the law of nations, not to the municipal (domestic) law. Similarly, foreign armies and enemy aliens were subject to the martial law, not the municipal law. The reason was because neither group was under the protection of the sovereign and neither owed even a local allegiance to the sovereign. Thus neither group was subject to the complete, municipal jurisdiction of the United States in the sense of the amendment.
Numerous authorities after the adoption of the amendment, including a few secretaries of state, concluded that children born to temporary visitors were excluded from birthright citizenship. In what sense might temporary sojourners not be subject to the full and complete jurisdiction of the United States? The sources generally did not say. But one possible answer is conscription: The Louisiana military authorities thought it impermissible to conscript temporary visitors or their children born in the United States. Temporary visitors, under the law of nations (called today international law), were not subject to this executive or legislative jurisdiction of the nation in which they were travelling.
Another possible answer is supplied by analogy to general and specific jurisdiction of courts: Domiciled residents are subject to the general—the complete—jurisdiction of the courts in their place of domicile, whether they are present there or not, a jurisdiction that does not extend to temporary visitors. Thus a nation’s judicial jurisdiction is more complete with respect to domiciled than temporarily present individuals.
Still another sense is that the law of nations provided that the sending nation continues to exercise a legislative jurisdiction over the personal status rights—such as marriage, legitimacy, and citizenship—of their citizens temporarily abroad. For example, Henry Wheaton’s prominent antebellum international law treatise explained: “There are also certain cases where the municipal laws of the state, civil and criminal, operate beyond its territorial jurisdiction,” and in particular the laws relating to “civil condition and personal capacity of its citizens operate upon them even when resident in a foreign country.”
Once a foreigner became domiciled, however, there was no exception to a complete legislative jurisdiction. As Wheaton wrote, “every independent sovereign state” has a right “to naturalize foreigners, and to confer upon them the privileges of their acquired domicil.” One prominent example of this principle was the famous Martin Kostza affair, during which the United States asserted its jurisdiction over a domiciled foreigner who had not yet naturalized. The Secretary of State argued that once foreigners “acquire a domicil, international law at once impresses upon them the national character of the country of that domicil,” such that other countries must treat Kostza “as an American citizen.”
Given this evidence, it is perhaps not surprising that the leading drafters of the citizenship clauses of the Civil Rights Act and the Fourteenth Amendment presumed that domicile mattered for birthright citizenship. Lyman Trumbull, the leading drafter of the Civil Rights Act, summarized the bill in a letter to Andrew Johnson as giving birthright citizenship to all persons “born of parents domiciled in the United States.”
The Chair of the House Judiciary Committee, James Wilson, stated when introducing the bill: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except . . . children born on our soil to temporary sojourners or representatives of foreign Governments.”
Unlike with respect to temporary visitors, there is not much post-adoption authority or discussion of illegal presence, given that immigration restrictions were still nonexistent or merely incipient during Reconstruction and the years immediately after. But there is also reason to doubt that unlawfully present aliens are subject to the complete jurisdiction of the United States in the relevant sense. Two reasons emerge.
First, as noted previously, and as Chancellor Kent and others had written, a lawful residence implied protection, which in turn made one amenable to the municipal jurisdiction of the nation. As Kent wrote, a lawful residence implies protection and a capacity to sue and be sued. An alien caught at the border may be subject to the criminal laws—as the Indian tribes were to some extent—but does it follow that the nation must allow him to sue on his contracts? Congress is hardly required to open the nation’s courts in this way. In other words, merely being subject to the criminal jurisdiction of the nation does not imply one has access to the benefits of the sovereign’s jurisdiction more generally, such as the right to sue and be sued in the nation’s courts.
“It was a violation of the law of nations to enter into another country illegally.”
A second reason is that it was a violation of the law of nations to enter into another country illegally. As Blackstone wrote, also in relation to safe-conducts, the king possessed “the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another.” That suggests an additional reason why the law of nations might be applicable rather than the municipal law, even if there was no question that illegal entrants could be subject to the sovereign’s criminal jurisdiction. Just as soldiers, prisoners of war, and ambassadors are governed by international law rather than the sovereign’s domestic jurisdiction, so too is migration governed in at least some respects by modern-day international conventions, such as the Convention Relating to the Status of Refugees and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
It is difficult to say that any of the historical evidence discussed in this essay is dispositive of the constitutional question. But that evidence does suggest that the Fourteenth Amendment’s language is open to different plausible interpretations. If so, should not the courts interpret the rule sensibly, to empower the political branches to deal with new problems that emerge over a century and a half later?
It is of course possible that the framers of the Fourteenth Amendment, through jurisdictional language intended to clarify a point about Indian tribes, inadvertently constitutionalized a rule with respect to unlawfully present aliens or temporary visitors that they did not directly confront or consider. But such a rule would go beyond the common law, beyond the scope of the Civil Rights Act, and beyond what was necessary to accomplish the central objective of extending citizenship to the freed people who for generations had been held in bondage. It is possible that that is what the drafters’ language does, but it would be rather astonishing if so.
Because the language is ambiguous, and because the framers had no specific intent with respect to the issues the modern Supreme Court will soon be addressing, the Court should tread carefully before disabling the political branches from acting in this matter. Doing so would have monumental consequences for America’s nationhood, for its sovereignty, and for the very idea of a social compact. The Court should not reach that result unless clear and unmistakable constitutional language compels it.