Birthright citizenship: the exceptions provide the rule

The battle over birthright citizenship is a battle over its exceptions.

The 14th Amendment’s first sentence proudly proclaims that “[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” No one doubts that babies born on American soil are born “in the United States.” So the key question is what “subject to the jurisdiction thereof” means.

One oversimplified definition would be “being subject to U.S. law.” But this reading, the Trump administration parries, “cannot explain” well-established exceptions to birthright citizenship relating to (1) ambassadors, (2) foreign public ships, (3) occupying armies, and (4) Native Americans. Under certain circumstances, even these groups can be held accountable for breaking the law, the solicitor general points out in his brief to the Supreme Court. So birthright citizenship must turn on something more than being subject to U.S. law – or so the solicitor general assumes. (In his view, a child is a birthright citizen only if at least one parent’s domicile, or legal home base, is in America.)

Respectfully, the solicitor general is confused – confused about the exceptions, confused about “jurisdiction,” and confused about the Constitution itself.

With the right constitutional rule in view, the exceptions turn out to have a deep logic and coherence. As the ancient legal maxim goes, the exceptions provide – that is, confirm – the rule. (The modern, garbled version of the maxim – “the exceptions prove the rule” – is incoherent. Outliers don’t validate rules, but falsify them.)

Two originalist touchstones – the soil and the flag – cleanly explain both the scope and the limits of the Constitution’s grand birthright-citizenship guarantee. As the 14th Amendment’s framers and ratifiers repeated ad infinitum, all born (1) on American soil and (2) “under the flag” are birthright citizens.

Indeed, every exception tracks the “under the flag” principle. Certain enclaves, even though located on American soil, fell under different flags – most notably, foreign embassies, land occupied and administered by foreign armies, and quasi-sovereign Indian lands. In the original understanding, “under the flag” was synonymous with “subject to the jurisdiction thereof.” These enclaves thus lay outside constitutional birthright citizenship’s full guarantee.

The exceptions “illustrate and confirm the general doctrine,” as Justice Joseph Story put it in an 1830 Supreme Court opinion. In other words, the so-called “exceptions” are not exceptions at all, but applications.

The exceptions provide the rule

Consider how each exception tracks the “under-the-flag” principle (and, in modern procedural lingo, mirrors a sovereignty-based jurisdictional defense that could require a court to dismiss a case for lack of subject-matter jurisdiction).

First, diplomats and their families enjoy diplomatic immunity, as if they carry their home country’s flag overhead wherever they go. Indeed, America’s first major federal criminal statute conferred diplomatic immunity, codifying the customary international law fiction of extraterritoriality that treated diplomats as constructively under their homeland’s flag even on foreign soil. This immunity is robust. In 1982, for example, the son of the Brazilian ambassador shot a D.C. nightclub bouncer after shouting “I’m with the Mafia” and yet “escaped prosecution.” Today, the 1978 Diplomatic Relations Act implements the 1961 Vienna Convention on Diplomatic Relations and mandates dismissal of actions against diplomats and their household family members.

Second, public ships flying foreign flags enjoy foreign sovereign immunity. In a classic 1812 decision authored by Chief Justice John Marshall, the Supreme Court unanimously held a French warship “exempt” from “the ordinary jurisdiction of the judicial tribunals.” (Two Marylanders sought a legal declaration of ownership, claiming that Napoleon had stolen the vessel from them.) The Foreign Sovereign Immunities Act has since codified the customary international law on which Marshall relied.

Third, occupied land is governed under the flag of the conqueror. In an 1819 decision by Story following the War of 1812, the Supreme Court unanimously held that certain goods were exempt from ordinary American duties because they had been imported into a Maine town during its occupation by British forces. “The sovereignty of the United States over the territory was, of course, suspended,” Story explained, “and the laws of the United States could no longer be rightfully enforced there.”

(Why then, Professor Ilan Wurman asks, can the children of natives born on occupied land still be citizens? Simple: The soil-and-flag principle sets a constitutional floor, not a ceiling. Nothing prevents grants of citizenship above and beyond the floor; John McCain, for example, was born on an American military base abroad and yet was a birthright citizen by statute. Also, under the legal doctrine of “postliminy,” a baby born on British-occupied land could upon reconquest be treated in law as if the American flag had never fallen, as Story suggested in 1830.)

Fourth, tribal lands are principally governed under tribal flags. In 1868, neither federal nor state law governed crimes committed on reservations by Indians against Indians. By contrast, Indians’ off-reservation offenses have always been fair game for federal and state authorities. (Today, babies born on tribal land are birthright citizens under a 1924 statute.) 

In short, the exceptions confirm the “under the flag” rule. Birth on American soil is not enough; the flag must also fly above the cradle.

Ordinary law in the ordinary way

To be clear, the point is not that diplomats, foreign sovereigns, and Native Americans can never be subjected to American laws. Everyone on American soil – even an ambassador – is in principle answerable to the bang of an American judge’s gavel. The president can prospectively narrow diplomatic immunity, and a sending state can retroactively waive it (as one did in 1997 for a Georgian diplomat prosecuted for driving under the influence and killing a 16-year-old girl). Foreign-sovereign immunity has statutory exceptions. And Congress could, if it wished, abrogate diplomatic, foreign-sovereign, and Indian immunity altogether.

Instead, the point is that American jurisdiction over the excepted enclaves is exceptional, not ordinary. When it comes to these categories, ordinary American law doesn’t apply in the ordinary way.

To make this concrete, imagine that a crime is committed today on non-occupied American soil and that a federal or state court must decide whether it has jurisdiction over the prosecution. If the defendant holds an A-1 diplomatic visa, he will assert diplomatic immunity. If the crime occurred on tribal land, a tangle of threshold jurisdictional questions will arise: Who is the defendant? Who was the victim? What was the crime?

But if the crime took place squarely under the American flag, none of the sovereignty-based jurisdictional defenses we’ve discussed will be available to the defendant, whether he is an American citizen, lawful permanent resident, temporary visitor, or illegal immigrant. Free legal advice: “I am here illegally and therefore not subject to U.S. jurisdiction” is a losing argument in court.

So, too, an American-born child of an illegal alien, as a person in her own right and indeed an American-born citizen, is fully subject to ordinary American law – for example, birth-certificate and infant-blood-test laws.

The 14th Amendment’s framers and ratifiers themselves understood this distinction between exceptional jurisdiction (applicable to all on the soil) and ordinary jurisdiction (applicable only to those under the flag). As Republican Senator (and future Attorney General) George Henry Williams put it two weeks before Congress sent the 14th Amendment to the states for ratification, “the child of an embassador . . . to a certain extent . . . is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians.” For Williams, that distinction explained why ambassadorial and tribal babies would not be birthright citizens, while babies born squarely under the flag would be.

An epilogue: from Rome to Reconstruction

Fittingly, it was a citizenship case that gave rise to the maxim “the exception provides the rule.”

In 56 B.C., Cicero defended Lucius Cornelius Balbus, a naturalized Roman, against the charge of unlawful citizenship. As Cicero pointed out, Rome had entered into treaties with various peoples that expressly barred their members from naturalizing. But the treaty with Balbus’s community had no such restriction. So, Cicero argued, the exceptions confirmed the general rule that Balbus and other foreigners could become Roman citizens.

With that history in mind, let us close with even more “under the flag” evidence, this one from a Fourth of July Address delivered by one Reverend J. M. Woodman and printed in a California newspaper at the very moment of the Amendment’s July 1868 ratification:

Children, do you realize what a privilege is yours, to be able to say I was born under that flag? In the palmy days of old Rome, it was a privilege indeed to be able to say “I am a Roman citizen.” It was the glory of that Empire that none of her citizens were left unprotected. More than once did the Apostle Paul preserve his life by announcing that he was a “Roman.” But a greater than Rome is here. … You have a just pride in declaring yourselves “Children of the Union – Citizens of America.” That flag means more than any, or all the flags ever thrown to the breeze over land or sea.