Birthright citizenship: a response to Pete Patterson

Brothers in Law is a recurring series by brothers Akhil and Vikram Amar, with special emphasis on measuring what the Supreme Court says against what the Constitution itself says. For more content from Akhil and Vikram, please see Akhil’s free weekly podcast, “Amarica’s Constitution,” Vikram’s regular columns on Justia, and Akhil’s new book, Born Equal: Remaking America’s Constitution, 1840-1920.

A recent SCOTUSblog post by attorney Pete Patterson is so riddled with confusions and misstatements that it requires a strong corrective. Today we consider several of its biggest blemishes.

We begin with this weird passage: “The [14th] amendment’s text is contrary to the notion that citizenship is to be automatically granted to the children of temporary visitors at birth. First, its language rejects temporary presence as sufficient to establish State citizenship. Rather, Americans are citizens of ‘the State wherein they reside,’ and reside means permanent residence, i.e., domicile.”

This curious passage is confused and confusing on many levels. Let’s begin by recalling the key 14th Amendment sentence in its entirety:  “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.” Now count the ways in which Patterson errs.

First, contra Patterson’s garbled suggestion, U.S. citizenship in this sentence is not remotely the same thing as state citizenship. (A similar confusion/conflation also appears in the solicitor general’s brief at pages 20-21.) Indeed, a person can be a U.S. citizen without ever having been a state citizen. Consider for example a hypothetical president’s child born in the White House and living her whole life in Washington, D.C. She is surely a U.S. citizen, under a proper soil-and-flag analysis, for she was “born . . . in the United States, and subject to the jurisdiction thereof.” But our hypothetical first daughter has never been the citizen of any state and verily has never resided in any state. The same is true of any American born in a territory (say, New Mexico in the 1860s) and who lives her entire life in that territory. Thus, the “residence” language of the amendment is not about U.S. citizenship at all. 

A second and related point. As serious constitutionalists have long understood, and as Justice Robert Jackson noted nearly a century ago, the 14th Amendment’s residence language addresses an entirely different issue: This language guarantees every U.S. citizen a right to relocate over the course of his life – a right to reside as a full and equal state citizen in any state he might choose. No state can prevent a true American citizen from residing in that state and enjoying all the privileges of state citizenship. (Akhil stressed this point at page 381 of a book published in 2005.)

Third, the Civil Rights Act of 1866 says nothing whatsoever about state citizenship or state residence. It citizenizes a broad swath of native-born, flag-and-soil Americans – including of course those born in territories and in D.C. If Patterson’s claim is that the 14th Amendment does not likewise citizenize American babies born outside the several states, then the amendment would have failed to achieve one of its central purposes: to provide a rock-solid constitutional foundation at least as broad as the 1866 Act itself. Without such a broad foundation, racist backers of the 1857 Dred Scott case (in which Chief Justice Roger Taney said that, constitutionally, Blacks could never be citizens) could have argued that the 1866 statute was unconstitutional in its effort to citizenize all American-born Black folk, in both states and territories. 

Fourth, the residence language of the amendment, as we have seen, addresses a person’s current residence, not his birth residence. It does not speak of “residence at birth.”

Fifth, the amendment surely does not speak of parental residence or domicile. (Had it done so, it would have needed to address which parent or parents – a huge issue that Patterson simply misses.) The amendment addresses the child born, not the parent or parents who give birth. Imagine a married white couple from Virginia who conceive a child. Imagine further that both parents trace their lineage to the founding of Jamestown in the early 1600s and are thus entirely American on any conceivable view of the matter. Now imagine that while the child is still in her mother’s womb, the father dies and the mother in her ninth month of pregnancy travels to Pennsylvania to visit her sister who will help with the impending birth. Alas, the mother dies in childbirth, and the Pennsylvanian aunt assumes custody of the baby. The child is surely a flag-and-soil US citizen, but is surely not a Virginian, as were her parents. (Later in life, should the child choose to reside in Virginia, or in any other state for that matter, she undoubtedly has that right, under a proper reading of the amendment.)

Sixth, Patterson’s weird “residence” argument ignores the plain language of Congress’ landmark 1952 immigration act, which affirms a soil-and-flag approach to birthright citizenship but says absolutely nothing whatsoever about residence: “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof.”

Seventh: Moving beyond the amendment’s text, Patterson tries to invoke some rather technical verbiage from Senator Jacob Howard in 1866 to bolster Patterson’s untenable claim that the “children of temporary visitors” are not as a rule birthright citizens under the amendment. But Howard’s abstract language does not remotely say what Patterson wants and needs it to say on the specific issue of American-born children of foreign sojourners.

On the other pan of the balance scale, countless specific and unambiguous statements from leading Republicans in the mid-1860s squarely rebut Patterson. For instance, President Lincoln’s Attorney General Edward Bates categorically declared that “children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States.” Lincoln’s Secretary of State William Seward, said the same thing: “[T]he children of foreigners born here are citizens of the United States.” Ditto for Lincoln’s Secretary of the Treasury Salmon P. Chase, who would soon become chief justice: “[A]ll free persons born in the United States or naturalized of whatever color, are citizens of the United States.” In the 39th Congress, when asked whether the American-born children of itinerant (that is, non-domiciliary) non-citizen Gypsies would be birthright citizens under a precursor statute to the amendment, Senator Lyman Trumbull replied, “Undoubtedly.” Representative John Bingham used similarly robust language on the campaign trail in 1867:  “If a man is not a citizen of the country in which he was born, in God’s name of what country is he a citizen?” (All these quotes with full citations appear in Akhil’s amicus brief.)

And if all that were not enough, consider the following exchange that unfolded on the floor of the Senate on May 23, 1866. Senator William Pitt Fessenden posed a hypothetical. “Suppose a person is born here of parents from abroad, temporarily in this country.” Senator Benjamin Franklin Wade answered unequivocally: “Most assuredly they would be citizens of the United States unless they went to another country and expatriated.” For this last point, we are indebted to attorney Chris Duggan’s brilliant and gripping amicus brief on behalf of the Charitable Irish Society of Boston and Pioneer New England Legal Foundation.

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Now consider another adventurous statement from Patterson: “[E]ven if a member of a tribe was born while his parents were visiting, say, Chicago, that person still would not be a citizen under the 14th Amendment because his parents maintained their tribal allegiance.” Our question for Patterson: Is there even a single case, in any court, in all of American history, that so holds on its facts? If so, he should cite the case. At present, we know of no such judicial ruling. And there is surely no Supreme Court case that on its facts squarely holds this. In this specific quadrant, the evidence in fact cuts hard against Patterson. Surely there were countless situations in which tribally allegiant parents gave birth outside the soil of tribal enclaves. On our under-the-flag, soil-and-flag theory, these babies were all proper 14th Amendment citizens. They were, we believe, so treated by all branches of the American government at all relevant times. Thus far, Patterson and his allies have failed to produce a single definitive counterexample.

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Elsewhere, Patterson conflates the language of the Civil Rights Act of 1866 with rather different language of the 14th Amendment. Here is the relevant passage of the statute: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” And, to repeat, here is the relevant language of the amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

As Akhil made clear at pages 194-97 of a book published in 1998, the amendment ranged beyond the statute in key respects. In a later post, we hope to return to this interesting wrinkle in more detail. For now it suffices to say that the language of the act – “not subject to any foreign power” – differs from the counterpart language of the amendment: “subject to the jurisdiction [of the United States].” A baby born with dual citizenship – and of course both the act and the amendment address the baby, not the parent or parents – might indeed in some sense be subject to a foreign power (and thus fall outside the protective blanket of the act) but might also be undeniably subject to American jurisdiction (and thus fall within the amendment’s protective blanket).

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Finally, we come to the biggest problem of all: Patterson’s weird appeal to anti-feudalism. True, America’s equal-birthright-citizenship regime does have deep roots in English common law dating back to the early 1600s – a feudal era in which Stuart kings claimed authority to rule birthright subjects based on the monarch’s divine birthright. Although these divine-right ideas were widely repudiated by the time of the English Glorious Revolution in the 1680s, most American colonists as late as 1775 did indeed see themselves as birthright Crown subjects, and this birth-king-birth-subject system did retain strong feudal remnants. But in July 1776, the colonies unanimously declared a new, more republican, regime based in no small part on the bold idea that all men are created equal. As Akhil has laid out in detail in his recent book, Born Equal, and has summarized in his more recent Barbara amicus brief, filed by Vik as counsel of record, 19th-century Americans led by Lincoln eventually went even further than they had in 1776, and embraced a compelling vision of equal birthright citizenship. According to this mid-1860s Lincolnian vision, all babies born on American soil under the American flag were born equal – whether born Black or white, male or female, Jewish or Gentile. Also, and relatedly, all American babies born on American soil under the American flag were born equal, whether born to citizen parents or alien parents, whether born to long-time residents or wandering sojourners.

This is the precise Lincolnian idea that Patterson defies when he insists that a baby born in America to alien sojourners is lesser than a baby born in America to citizen parents. Patterson’s is a view closely akin to the view of the 1850s Know-Nothing party – a party that Lincoln emphatically repudiated. Patterson openly opposes Lincoln’s grand anti-hereditary idea of birth equality. Patterson wants modern America to focus instead on blood and parentage – on a American-born baby’s birth-lineage above and beyond her birth-location. But Patterson’s focus on lineage and blood is itself a strong vestige of Old World ideology. Patterson’s repudiation of Lincoln – under a banner of anti-feudalism, no less! – is thus somewhere between obtuse and absurd.