Originalism and Birthright Citizenship

109 Georgetown L.J. (Forthcoming)

San Diego Legal Studies Paper No. 20-469

76 Pages Posted: 22 Sep 2020 Last revised: 26 Sep 2020

See all articles by Michael D. Ramsey

Michael D. Ramsey

University of San Diego School of Law

Date Written: August 26, 2020

Abstract

The first sentence of the Fourteenth Amendment provides: “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.” This language raises two substantial questions of scope. First, what does it mean to be born “in” the United States? Does that include birth in U.S. overseas possessions, territories, bases, or places under temporary U.S. occupation? Second, what does it mean to be born “subject to the jurisdiction” of the United States? Does that include persons born in the United States to parents who are only temporary visitors or parents not lawfully present in the United States?

The original meaning of the citizenship clause’s text indicates a broad scope for constitutional birthright citizenship as to both places and persons. At the time of enactment, places subject to the permanent U.S. sovereign authority were considered “in” the United States without regard to whether they were territorially contiguous or culturally integrated into the U.S. political system. In mid-nineteenth-century terminology persons born within U.S. territory were “subject to [its] jurisdiction” unless excluded legally by international rules of immunity or practically by military or political realities.

But these originalist solutions in turn raise a challenge for originalism as a theory of modern constitutional interpretation. There is little evidence that the Amendment’s enactors considered or could have foreseen the modern implications of either question. The United States had no material overseas possessions when the Amendment was drafted and ratified. Restrictive federal immigration laws did not materially take hold in the United States until the late nineteenth century. Application of the citizenship clause thus requires originalism to confront the role (or lack thereof) of intent in modern originalist theory. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text’s resolution of key questions of its scope appears to be largely accidental. The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices. As the Article will discuss, explanations are available, but they may take originalism away from some of its apparent common ground.

Keywords: citizens, birth citizenship, Fourteenth Amendment, subject to jurisdiction, original meaning, originalism

JEL Classification: K10

Suggested Citation

Ramsey, Michael D., Originalism and Birthright Citizenship (August 26, 2020). 109 Georgetown L.J. (Forthcoming), San Diego Legal Studies Paper No. 20-469, Available at SSRN: https://ssrn.com/abstract=3681119

Michael D. Ramsey (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-4145 (Phone)
619-260-2218 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
104
Abstract Views
269
rank
286,644
PlumX Metrics