SCOTUS on Birthright Citizenship

I decided to writeup a short explanation of the Supreme Court’s recent ruling on the meaning of the birthright citizenship clause of the 14th Amendment.

Important backdrop for understanding this ruling is the long term conservative project to interpret the Constitution using a method called Textualist Originalism, which is expressed in a clear and accessible way in Antonin Scalia’s book, A Matter of Interpretation. The idea is that the Constitution ought to be interpreted in accordance with the way the text would have been understood by people living in the time of it’s enactment.

The text of the 14th Amendment’s citizenship clause is as follows:

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.

What does that text mean? Everyone born here is a citizen, unless they are, for some reason, not subject to the jurisdiction of the United States Government.

Generally, when you travel to another country, you are subject to the jurisdiction of that country’s government. If you break a law in their country, you face the consequences under their justice system. There are, however, a few specific narrow exceptions. Foreign diplomats and people on foreign government ships are considered to have diplomatic immunity, and are therefore not considered to be subject to our laws when they are here.

Therefore, children of foreign diplomats that are stationed in the US, or a child born for some reason on a foreign government ship in US waters, are not granted US citizenship by birth. These were the specific exceptions mentioned by the Supreme Court in 1898 when they last ruled on the meaning of this clause, in a case called US v. Wong Kim Ark.

There isn’t anything else to this, and thats what the majority of the Supreme Court held in their recent ruling. However, conservatives don’t like this — they don’t agree with the citizenship clause, and they want it to say or mean something different. So, four different conservative justices published opinions rationalizing that the Constitution means something different than what it plainly says, in contradiction with the long term advocacy by these same conservative justices that the Constitution shouldn’t be interpreted this way.

Of the four, Thomas and Gorsuch presented what is probably the most reasonable alternative view. Thomas wrote for many pages about the concept of “domicile.” He argues that “domicile” was an unspoken requirement for birthright citizenship. Indeed, Wong Kim Ark refers to “resident” aliens.

There are two problems with this point of view. The first is that this is not textualist. The people who wrote and ratified the 14th Amendment were certainly aware of the concept of “domicile.” They did not write that text into the Constitution. If they had wanted to, thats what they would have done.

I’ve heard it argued that people didn’t understand immigration in the 1860’s, but thats not true. Lincoln wrote in his electric cord speech that “among us perhaps half our people who are not descendants at all of [the founding generation], they are men who have come from Europe…”

The second problem is that “domicile” won’t get conservatives the policy outcome that they want. Certainly, long term legal residents on work visas have “domicile” in the United States. Thomas argues that illegal immigrants may not be considered to have “domicile” because they don’t have the legal basis to establish it, but Gorsuch isn’t even sold on that — arguing that the courts have always maintained that everyone is “domiciled’ somewhere.

If it was accepted, this argument about “domicile” might allow for a ban on “birth tourism.” Conservative activists aren’t going to be completely happy with such a narrow carve out, because such a small number of people obtain citizenship this way (between 10k and 20k a year depending on which advocacy group’s numbers you trust.)

The next most radical point of view is that of Alito, who argues that people who may be claimed as citizens by a foreign country do not quality for birthright citizenship. Again, nothing in the text suggests this. The text applies to anyone subject to the jurisdiction of the United States — it does not say “anyone not subject to any foreign power.” As written, Alito’s point of view might deny citizenship to my two children, born in the United States to two parents who are themselves United States citizens, because they are also eligible for a foreign country’s citizenship as a consequence of ancestry. Alito tries to fix this problem by arguing that “people who are lawfully present here, establish the United States as their intended permanent home, and do everything within their power to become United States citizens can be seen as no longer subject to any foreign power.” Again, Alito seems to see the rule that he wants rather than the rule that we have.

Kavanaugh goes further, fully embracing the idea that the Constitution means whatever we want, completely dispatching with textualist originalism. “The original constitutional principles do not change absent a constitutional amendment, but the relevant principles — both the rules and exceptions alike — must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.”

To the exceptions explained in Wong Kim Ark, which are specific situations where people are not “subject to the jurisdiction” of the United States Government, Kavanaugh argues that we can add other exceptions, if we feel like. Any kind of exception we want, apparently, without regard to the text. (1) He proposes two exceptions that would cover everyone here who doesn’t have a greencard, as long as Congress approves.

Its Kavanaugh’s ruling that has now galvanized the right — telling them that they can amend the Constitution just by passing an act of Congress. Trump received the message, writing on truth.social: “The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process. No long and unwieldy Constitutional Amendment is necessary! Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!”

I agree with commentators who believe that overturning the citizenship clause will become the new Roe — the litmus test for conservative jurists going foward will be their willingness to overturn this week’s ruling. In doing so, conservatives will leave “textualism” behind them — arguing that the Constitution does not mean what it says — it means whatever conservatives want it to mean.

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1 — Kavanaugh argues that “other exceptions can be recognized when the new exceptions (i) are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers of the Fourteenth Amendment, and (ii) are relevantly similar to the four previously recognized Wong Kim Ark exceptions.”

One problem with that statement is that any new exceptions must relate to the text of the Constitution, not the text of Wong Kim Ark. Regardless, the exceptions in Wong Kim Ark are specific examples of cases where people are not subject to the jurisdiction of the US Government (such as people with diplomatic immunity). Kavanaugh proposes two new exceptions, for temporary residents and illegal aliens, that have absolutely nothing to do with jurisdiction and are therefore not “relevantly similar” to the Wong Kim Ark exceptions in any way. Those two new classes of people are still subject to being prosecuted in US Courts if they violate the law here and therefore they are both “subject to the jurisdiction” of the US.