Mike Rappaport argues that Mike Ramsey is correct that, “it was a bedrock principle of nineteenth-century international law that sovereigns had complete jurisdiction (that is, authority to prescribe law) over all persons and things within their sovereign territory.” In a follow up post he allows that “there is some uncertainty as to the full meaning of “subject to the jurisdiction” of the United States. But, [he says] the argument for birthright citizenship is still much stronger than the alternative.”

Perhaps. But perhaps the first contention—that 19th century precedents clearly cut one way—is less solid than he, and Professor Ramsey, assert. To say that the 19th century case is clear, one has to get past Justice Story. As I noted in another place a few years ago, Story found that:

Birth within the dominions of a sovereign is not always sufficient to create citizenship if the party at the time does not derive protection from its sovereign in virtue of his actual possession; and on the other hand, birth within the allegiance of a foreign sovereign does not always constitute allegiance if that allegiance be of a temporary nature within the dominions of another sovereign.

Perhaps Story was wrong. Or it might be that the use of the term “Jurisdiction,” rather than “allegiance” is the key.  But in standard grammar, “the jurisdiction” would imply full jurisdiction. By contrast one would have to specify a limited jurisdiction.  And I do not think American jurisdiction over resident aliens was full.  I do not think a French businessman who was living in New York could have been drafted into the Union army during his stay in the United States. Perhaps I am mistaken.

Similarly, I noted that in his book on Conflict of the Laws, Story found that “a reasonable qualification of this rule [allegiance based on location at birth] would seem to be, that it should not apply to the children of parents, who were in itinere in the country, or abiding there for temporary purposes.” Story said that that qualification is not “universally established.”

Similarly, as Justice Fuller noted in his dissent in U.S. v. Wong Kim Ark noted, “In his Lectures on Constitutional Law, p. 79, Mr. Justice Miller remarked:”

If a stranger or traveler passing through, or temporarily residing in, this country, who has not himself been naturalized and who claims to owe no allegiance to our Government, has a child born here which goes out of the country with its father, such child is not a citizen of the United States, because it was not subject to its jurisdiction.

Perhaps these two examples are the only ones, although Story suggests the rule for the children of people passing through is the general rule, with some exceptions. But if two Justices who wrote works on law in the 19th Century disagreed with what Professor Rappaport says was a “bedrock principle,” perhaps the legal historians have over-simplified the matter, and if that is the case, perhaps the case is even less certain than Rappaport allows.

Rappaport goes on to argue that there is a plausible normative argument as well as a plausible living constitution argument for the idea that not all people born in the U.S. are to be U.S. citizens automatically. If the “living constitution” argument simply means that interpretation follows what Left-leaning law professors regard as justice, then the argument for a “living” mode of interpretation is weak, indeed.

Let’s put aside the matter of people here in violation of our law, and instead consider other cases than that of those who have crossed the border illegally. How about the child of a visiting professor from Britain, or a tourist from China, or a business consultant from Nigeria who is in the U.S. on a business trip, or a student from Brazil who has overstayed his visa? Those seem to be the types of cases Story had in mind when he mentioned cases where “allegiance be of a temporary nature.”

Richard Epstein does a nice job explaining the “Shaky Case for Birthright Citizenship” in light of precisely such cases. He notes, for example:

Let’s start with the question of whether a child born of a tourist lawfully in the United States on a limited time visa becomes a U.S. citizen at birth. The case does not fall within the first sentence of the Fourteenth Amendment because the mother of that child is a not a resident of any state at all. Her sojourner status leaves her a resident of whatever place she was before she entered the United States. The child’s residence follows its mother’s, so the child is not a citizen of any state or of the United States either.

Moreover, he adds, “The case for citizenship is made weaker if that sojourner has entered the U.S. illegally. No residency in any state is established.”

I would like to add one more case. The United States has tax treaties with several countries. According to these treaties, “residents (not necessarily citizens) of foreign countries are taxed at a reduced rate, or are exempt from U.S. income taxes on certain items of income they receive from sources within the United States.” Similarly, the U.S. does not claim, so far as I know, the right to tax fourteen days worth of interest income or dividend income of a wealthy tourist from, say, India who is in the U.S. for two weeks. (Recall that in the classic American view, property is personal. It belongs to individuals not to the government.) Hence, if the U.S. has full jurisdiction over an individual in the U.S. on a tourist visa, it has a claim to tax the interest for each day a person is in residence in the U.S. The case sounds absurd, some might claim. Precisely. It is absurd to claim the U.S. has the same jurisdiction over a tourist as it has over a full time, legal resident.

Logically, if the U.S. had full jurisdiction over all foreign residents in the U.S., the IRS would have a claim for tax due on one week’s income of a foreign national who is visiting the U.S. for seven days. If Professor Rappaport’s reading of the 14th Amendment is correct, the U.S. has no right to negotiate the nature and extent of its jurisdiction over foreign nationals resident in the U.S. (Was that a right of nations in the 19th century?) Perhaps one could argue that the US has the right to negotiate its jurisdiction over foreign nationals resident in the US with regard to taxation but not with regard to the nationality of any children they have when on US soil. Perhaps. But I would like to see the argument made.

That said, the idea of asking new parents for their papers when writing up a birth certificate offends my moral sensibilities. It is one thing to demand identification for someone who wishes to vote—to ensure that the person is, indeed, who they say they are, and are not stealing someone’s identity, but it is quite another to ask each and every resident of the United States to have papers that prove their right to be here. On the other hand, in our age we already need to show identification each time we go to a doctor’s office, stay in a hotel, and in many other cases. I am very sympathetic to the idea that the 14th Amendment does not mean the children of all foreigners (students, visiting lecturers, businessmen, tourists, and people here illegally for various reasons) must be U.S. citizens. But I am curious how the U.S. would enforce such law.

One final point, on which I might expand on another occasion. In colonial New England, each town was, if memory serves, responsible for ensuring that each resident had food and shelter. Anyone born in the town was, for such purposes, a resident. If someone came into the town, the town had, if memory serves, a year to “warn out” said person. After a year, the person had residence by something like adverse possession. (Adverse possession being the means by which someone may acquire legal possession of property by continuous and un-contested use). The analogy to people who enter the U.S. without our permission might be useful. Might an illegal settler inside the U.S. become a legal settler after a certain number of years if the government fails to kick that person out of the country? Such a practice would certainly be just. The question is how many years would be reasonable.

The kicker is that, as I understand it, the majority of American citizens have always wanted our immigration laws enforced, but our ruling class has not been enthusiastic to do so. That is not, however, the fault of people who have entered the U.S. illegally. But it also is one reason why the U.S. is in the politically fraught shape it is in.