Legal Commentary

Professor Chin gets the conversation started, but there are several places where I think he begs the question under considersation.  We're trying to ascertain what the meaning of the 14th Amendment was to those who drafted and ratified it, and in particular whether it was intended to confer automatic citizenship on the children of those who are in this country illegally.

So, our first point of disagreement.  Prof. Chin claims that the 14th Amendment "essentially codified Calvin's Case" and the principal of jus soli it espoused--once born on the king's soil, always the king's subject.   He cites Wong Kim Ark as support for this proposition, claiming that the Supreme Court in that case "held that the language excluded only 'the two classes of cases,--children of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,--both of which . . . by the law of England and by our own law, . . . had been recognized exceptions to the fundamental rule of citizenship by birth within the country.' "  But note carefully the location of his quotation marks--"only" is not within them, and it does not appear in the Wong Kim Ark decision.  Rather, Wong Kim Ark notes that "subject to the jurisdiction" excludes those classes, but the issue for us is whether it also excludes those who are merely subject to the partial, territorial jurisdiction of the United States by virtue of their mere presence within its borders, but not subject to the "full and complete" jurisdiction specifically referenced by the authors of the 14th Amendment.   Wong Kim Ark suggests that it does, but that is dicta, because that question was not before the Court.  Wong Kim Ark's parents were lawful, permanent residents, not unlawful or temporary ones.

Which leads me to my second main point of disagreement.  Professor Chin says "there's a statute" that codified the holding of Wong Kim Ark, and that "the drafting history . . . makes clear that the statute embraces the holding of Wong Kim Ark."  Not quite.  The drafting history actually makes clear that it embraces both the holding of Wong Kim Ark and the contradictory holding of Elk v. Wilkins.  See page 8 (Prof. Chin cited only to page 7).  Elk clearly rejected jus soli as the meaning of the 14th Amendment, so the only way to reconcile these two cases, and the drafting history supporting the current statute (which, after all, merely repeats the language of the 14th Amendment) is to read Wong Kim Ark as limited to its actual holding, namely, that the children of lawful, permanent residents are also entitled to automatic citizenship.   I do agree, though, that if Congress wanted to grant automatic citizenship beyond that, it certainly could, pursuant to its Article I power over naturalization.  By embracing both Wong Kim Ark and Elk v. Wilkins in the legislative history to the current naturalization statute, it has not yet done so.

I'm sure I'll have more on the collateral points, but let me close with a third area of major disagreement.  Prof. Chin notes that the old common law rule was jus soli.  Indeed, it was.  And there are certainly antebellum-era cases continuing to apply the old common law rule (though none by the Supreme Court itself, to my knowledge).  In 1776, we adopted the common law to the extent not inconsistent with the principles of the Declaration of Independence.  But what is the Declaration if not a full repudiation of the jus soli doctrine?  By it, our Founders claimed a natural right to repudiate their former allegiances and create a new one, establishing a new government based on the consent of the governed.  That was not permissible under jus soli.  Hence, "consent" rather than perpetual feudal allegiance is the model for citizenship we adopted in 1776, though it took some time for the old common law courts and lawyers to come to the full appreciation of what that meant.  While not a model of clarity, the better read of the debates over the 14th Amendment is that it was intended to confirm our consent-based model for citizenship.  The nearly contemporanous debates over the Expatriation Act confirm this with even greater clarity.  The Supreme Court unanimously confirmed this view, albeit in dicta, in The Slaughterhouse Cases, the first case to reach the Supreme Court interpreting the 14th Amendment, noting that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."  (emphasis added).  It accepted that dicta as holding in Elk v. Wilkins.  The major treatise writer of the day, Thomas Cooley, asserted that meaning of the 14th Amendment as well.  Even after Wong Kim Ark, Congress continued to subscribed to its tenants--the 1924 naturalization act for Native Americans would not have been necessary if birth on U.S. soil was alone sufficient.

So Congress is free to grant citizenship to anyone born on U.S. soil if it wants to, even to terrorists like Anwar al-Awlaki, who was born while his Yemeni parents were temporarily in the United States on a student visa.  I just don't agree that the 14th Amendment foolishly requires such a result; rather, that would be an exercise of Congress's power over naturalization.  As Senator Jacob Howard, the author of the Citizenship Clause, and Senator Lyman Trumbull, a key drafter of the 14th Amendment, described, "subject to the jurisdiction" as used in the 14th Amendment requires "a full and complete jurisdiction," "not owing allegiance to anybody else."  Those who are in this country illegally are not here by consent, and they continue to owe allegiance to their home countries.  They have subjected themselves to our laws, to be sure, and hence to our partial and territorial jurisdiction, but not to the broader, allegiance-owing jurisdiction intended by the 14th Amendment and mandated by the "consent" principle of the Declaration of Independence.  We welcome as fellow citizens all who come to this country by mutual consent.  We just ought not be in the habit of handing out citizenship like lottery tickets to those who violate our laws, ignore our lack of consent, and enter this country illegally.  As I said, I don't think the proper understanding of the 14th Amendment requires such a result.