RUTHFULLY YOURS

Originalism is the theory of legal interpretation holding that the meaning of a law is the original public understanding of the actual text. That is to say, we are bound to interpret a statute or constitutional provision to mean whatever the people at the time it was passed commonly understood its actual words to mean. It’s a pretty straightforward idea and comports with how most people read things in their everyday lives. Words mean what they mean, not what we wish them to mean.

But what happens when, after a thorough, originalist look into the meaning of a constitutional provision, the best answer scholars can come up with is that we don’t really know? That is, in essence, the question debated in at a meeting of the Federalist Society in Philadelphia earlier this week when law professors John Eastman and John Yoo took the stage to discuss the meaning of the Citizenship Clause of the Constitution’s Fourteenth Amendment, and specifically how it applies to the children of illegal immigrants and birth tourists.

How Should We Interpret Citizenship?

It was a lively and thoughtful debate between two conservative law professors who clearly respected one another. Projected on the screen behind them were the words of the Citizenship Clause, with the relevant section in italics for emphasis:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Eastman began the event by explaining his understanding of that portion of the sentence. Modern readers think of “subject to the jurisdiction” as being the same as “subject to the laws,” but Eastman explained that there is more to it than that. Several groups of people, both in 1868 (when the amendment was adopted) and now could be considered to be in the United States but not completely subject to our jurisdiction. The three exceptions noted at the time were: American Indians living on reservations, foreign diplomats and their families, and people in American territory that was occupied by a foreign army.

Tribal sovereignty is a complicated issue on its own, but as far as American citizenship is concerned, Congress cleared up this exception in 1924 by passing the Indian Citizenship Act, which made all Native Americans citizens. Likewise, foreign occupation has not been an issue since the Fourteenth Amendment was passed. (Two Aleutian Islands were occupied by Japan in World War II, but it is unclear whether anyone was born there during the occupation.)

Diplomats and their families do still live here, though, and Eastman noted that children born to them do not receive citizenship automatically because their parents were here temporarily and did not owe allegiance to the United States. They have to obey our laws (for the most part) but are still subject to a foreign power and not in full allegiance to the United States.

Eastman uses this as a starting point for his analysis of the children of illegal immigrants and birth tourists, two classifications of people that did not exist in law in 1868. In his view, the lack of jurisdiction over such people makes it more likely that they should be treated like diplomats’ children than like those of people who immigrated here legally and took up allegiance to the United States.

Jus Soli or Jus Sanguinis?

In conducting this analysis, Eastman examined the way citizenship was conferred throughout history. Most nations, then and now, adhered to one of two methods of determining citizenship: jus soli or jus sanguinis. Jus soli (right of soil) is nearly standard in the New World and represents the way the Fourteenth Amendment is currently interpreted: if you are born in this land, you are a citizen. Jus sanguinis (right of blood) is the idea, more common in the Old World, that your citizenship is determined by your parents’ citizenship.

Jus soli, Eastman explained, comes from the English common law and was a thoroughly medieval concept: anyone born in the king’s land was the king’s subject. Under the traditional definition, there was no choice involved. Not only was everyone born in England a subject of the English king, but they always would be his subjects, even if they left the country. It was as much about the sovereign’s right to command allegiance as it was about the subject’s access to the rights of citizenship.

Eastman believes that neither strict jus soli nor jus sanguinis is compatible with American law. Unlike those old monarchies of Europe, American governments require the consent of the governed. No feudal king is owed our allegiance. People choose to be Americans and America chooses to accept them. In Eastman’s telling, this consent is a two-part requirement: to become subject to American jurisdiction, the government must choose to offer it and an immigrant must choose to accept it. Essentially, he suggests a third option of American citizenship, a “jus electionis”—the right of choice.

For illegal immigrants and birth tourists, that process is incomplete. This seems evident in some of the cases and examples Eastman cites (a fuller treatment of his ideas is available here). For example: could an illegal immigrant who makes war against the United States be tried for treason? It is hard to see how, when he has never taken up any allegiance to this country. In Eastman’s estimation, his status is more like that of a “sojourner”—someone who is just passing through.

The Fourteenth Amendment’s Role

Yoo argued the opposite position. He began with the text, and rejected the notion that post-1868 precedents could invalidate that text’s plain meaning. Instead, Yoo focused on the history of the Fourteenth Amendment and why it was written.

In the amendment’s Citizenship Clause, Congress explicitly overruled the Supreme Court’s infamous case, Dred Scott v. Sandford. In that case, Chief Justice Roger Taney famously wrote that black people were not citizens of the United States and could never be citizens. The case opened the west to slavery, and brought the sectional divide to a raging boil, culminating in the Civil War.

Given the point of that war and the case law being overturned, Yoo asks if it is likely that Congress—in the middle of an effort to broaden citizenship to people of all races—would simultaneously seek to limit it. He agrees that the three longstanding exceptions Eastman cites remain. But in considering the new problems of illegal immigration and birth tourism, Yoo believes it would be an unnatural and inconsistent reading to assume they are also excluded.

Yoo also looked at the debates over the Fourteenth Amendment’s adoption in 1868 and finds plenty to support his cause. Critics of the proposed amendment attacked it as overbroad, complaining that it would grant citizenship to the children of Chinese and gypsies who were residents in the United States.

Proponents of the amendment did not dispute this reading. On the contrary, they agreed, and said that such people would indeed be citizens, even if their parents were not. The amendment’s language was recognized as broad from the start, Yoo argued. The text is far-reaching, and has no language about “sojourners.” (More from Yoo on this point is available here.)

No Consensus, Even Among Those With Shared Values

That two conservative scholars who agree on so much else could disagree so thoroughly on this point is evidence of the lack of consensus on original public understanding of this precise issue. We have plenty of evidence about what the Framers of that amendment thought it meant, and what their critics said about it as well.

But how the 19th century language is applied to 20th and 21st century concepts like illegal immigration and birth tourism is a much harder question. No one was thinking of these things in 1868, for the simple reason that they didn’t exist.

That does not mean originalism will fail, only that the task gets harder. A Constitution that is capable of applying the 1791 Bill of Rights to email, television, and cell phones can certainly manage to apply the 1868 Fourteenth Amendment to illegal immigration. It requires only the correct analogy, which Eastman, Yoo, and others have struggled to find.

The debate is becoming more important. President Trump and some members of his administration are questioning birthright citizenship for these two categories of people in a way not done in decades. Meanwhile, many prominent Democrats are calling for an effective broadening of citizenship, wishing to bestow the rights thereof on anyone who manages to wander across an unguarded border. Who is an American citizen and how to become one are questions that are becoming more prominent.

What does the debate between Eastman and Yoo tell us? Mainly that the issue remains uncertain, and no court has ruled directly on the issue to help clarify it. I thought Eastman’s argument is more convincing as to what the Constitution requires, if only slightly. But Yoo, in my view, articulates a better vision of what the law ought to be, in light of the spirit in which it is written.

Synthesis of these two points is possible; it’s the courts’ job is to say what the law is, but Congress’s job is to write the law how it ought to be. If the Supreme Court ever does rule in favor of Eastman’s interpretation, or even if it does not rule at all, Congress can fix the problem.

Article one of the Constitution gives Congress full power over immigration. The Fourteenth Amendment only sets a minimum citizenship qualification. If the courts decide that the American-born children of illegal immigrants and birth tourists are not automatically citizens, Congress still has the power to make them citizens under the law. The choice belongs, as all political choices should, to the people and our elected representatives.