Challenging the Claremont View of Birthright Citizenship

My friends at the Claremont Institute have provided the intellectual underpinnings for President Trump’s executive order that attempts to end birthright citizenship and replace it with a rule that recalls the ius sanguinis rules of Old Europe.

According to the view advanced by participants in this symposium, including John Eastman, Ed Erler, Michael Anton (since departed for the Department of State’s Office of Policy Planning Staff), and my podcast host, the international woman of mystery Lucretia (yes, that is her official title), not only must a baby be born on American territory to become an American citizen, but the baby’s parents must also be in the country legally. I take them to mean that the parents must be either citizens or legal aliens, such as permanent resident aliens, but they cannot be in the United States illegally or even under short-duration visas, such as for tourists or students. I assume Claremont Institute scholars draw the line at citizens and green card holders because of Eastman’s argument in 2020 that Kamala Harris could not become vice president because she was born to parents who were in the U.S. on student visas.

We are all familiar with the first sentence of the 14th Amendment: “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.” Unfortunately, my friends have misconstrued the phrase “subject to the jurisdiction thereof” in the amendment’s text. To describe their argument fairly, Claremont scholars read the phrase as referring to someone whose parents are already part of the American political community, such as a citizen or permanent resident alien.

I think their reading takes a text with a defined legal meaning at the time of the 14th Amendment’s ratification and reads into it a deeper political theory that it does not bear. I don’t blame Claremont scholars for this—they are trained political theorists, after all. Sometimes, however, Claremont scholars seem to be engaged in a competition to find deeper political theories lurking in places where no one thought they resided. But sometimes a cigar is just a cigar. And in this case, the cigar is just the use of standard common law legal concepts in the interpretation of the constitutional text.

Under the common law and international law of the 18th and 19th centuries, there were discrete categories of individuals who could be present on U.S. territory but would not be considered subject to our jurisdiction. This included diplomats, occupying armies, and Indians. Diplomats had this status because of the immunity we reciprocally provide for similar benefits for our diplomats abroad. Occupying armies (which would not have been such an unusual occurrence during the Civil War) were not under U.S. jurisdiction, because they sat on territory over which the U.S. had a legal claim, but not actual control. Indians fell into this category too because our Constitution, according to Chief Justice John Marshall, recognized tribes “as domestic dependent nations” that enforced their own laws in the territory they occupied. Hence the 14th Amendment’s language excluding from automatic citizenship the children of the parents within these three categories.

When I present this interpretation, which happens also to be the one adopted by the Supreme Court in United States v. Wong Kim Ark (1898), my Claremont friends object that it imports a monarchical common law rule into our republican Constitution. As I understand the argument, the Constitution must reject the British rule of ius soli, because British law treats citizens as unwilling subjects of the Crown rather than members of a political community founded on consent. The American revolutionaries pursued something like a Lockean social contract, so citizens cannot be made subjects of a government without the agreement of both the individual and the government.

I have several questions about this view. But before raising them, the general claim that the British common law cannot be used as a guide for interpreting the Constitution seems quite mistaken. The words of the Constitution did not emerge deus ex machina. All of the revolutionaries until 1776 were British citizens. All of the lawyers and politicians of 1776 were British-trained lawyers and politicians. It is therefore not surprising that they would understand the legal words in the Constitution and statutes in the same way that those words had been understood in the years leading up to the American Revolution. In fact, it would be strange if the Framers suddenly gave new, ahistorical meanings to words that had a traditional legal meaning.

To give an example from my own work, I have argued that we should understand constitutional phrases such as “the executive Power,” “Commander in Chief,” and “declare War” with reference to their definitions in British law and practice at the time of the Founding. It is an historical anachronism, I have maintained, for legal scholars today to interpret “declare War” to mean commence military hostilities, which is a meaning that does not comport with authorities such as Blackstone or British constitutional practice, where declarations of war were often issued long after hostilities had started.

With that general principle of interpretation stated, here are questions for my Claremont friends:

1. Is there any historical evidence for the view that the Framers rejected the common law rule of ius soli? I have not seen it. Instead, the historical evidence indicates that the drafters of the Constitution and the delegates to the state ratification debates would not have understood the document to reject the British rule of citizenship with something like the Claremont Institute’s combination of ius sanguinis plus presence on American territory. It would be surprising if the Framers had rejected such an important rule and made no mention of it.
2. Claremont scholars state their claim at such a high level of generality that it would be easy to then argue that it alters the interpretation of this or that constitutional provision, but without having to show any of the evidence that originalists generally require. One could carry the consent principle so far as to undermine other features of representative government and some of the anti-democratic features of the Constitution. Could one also say that we have to interpret the powers and composition of the Senate so it does not interfere with the principle of republican consent? Bruce Ackerman makes an argument like this in favor of reading the Senate’s role in treaty-making out of the Constitution.
3. If the Claremont view is right, we should see historical evidence of the states rejecting the common law rule in the years after the Constitution’s ratification. Where is it? We can agree that this is an area of insufficient historical research. But the limited work available indicates that the states continued the common law rule of birthright citizenship. In fact, many states enacted statutes incorporating the common law in toto upon independence. I have not seen Claremont scholars find any exception in these incorporation statutes for the rule on citizenship. Historical work suggests that birthright citizenship was the rule—and that makes sense of Dred Scott; if it were not the rule, Chief Justice Taney would have addressed the issue differently. When I have asked Claremont scholars this question, they have given me examples where a legislature made clear that a child of citizens born outside of U.S. or state territory was still a child. But that makes perfect sense in that the jus soli rule would not have an answer for the case of such children, and that Congress would have to set a policy. If jus sanguinis were in fact the rule, then there would be no need for Congress to pass such a law. But if our antebellum system followed ius soli, then it would presume the children of U.S. citizens born abroad would not be American citizens—hence the need for legislation.
4. Even if I were a 100% West Coast Straussian who worshipped at the feet of Harry Jaffa (I hope I used the technical phrases correctly), I do not see why the rejection of monarchy favors jus soli. It seems to me that the jus sanguinis rule is the one of monarchy, which is why it is the Roman law rule that has since remained a bedrock of the European civil law. Under ius sanguinis, you are a citizen of the nation where your parents are citizens. You have no choice. Under jus soli, your parents can leave the nation and have their child in a jus soli country. And if citizenship in the U.S. derived from state citizenship in the antebellum period, as it appears to, then you could choose the exact state where you wanted your child born.
5. The consent idea is a rule without a limiting principle. If citizenship is based on consent, then what of all the people who never gave consent? How do we determine the citizenship of a baby at birth? It does not have the rationality to consent. Would we wait until the child turned 18 and then ask him to make a choice of citizenship? Why 18? Why not 17? Could someone change their mind when they were an adult? Can the political community change its mind too? Could it establish a rule that excluded from citizenship children born in the U.S. with citizen parents because the children did not hold certain beliefs, or did not contribute to the nation sufficiently?
6. Ultimately, I find the Claremont reading an upside-down reversal of the 14th Amendment. Here is a Reconstruction Congress at the end of the Civil War reversing the terrible mistake of Dred Scott and expanding citizenship to a class of Americans—the former slaves—who had been born in the United States but were still denied citizenship. That is the point of the very first sentence of the 14th Amendment. Why would the 14th Amendment’s Framers narrow the definition of citizenship for everyone else? That runs so counter to the great purpose of the 14th Amendment and the great Reconstruction Congress—to expand rights and liberty—that I find Claremont arguments difficult to comprehend consistently with what we know about the 14th Amendment.

Perhaps this is a difference between political theorists and lawyers. Claremont scholars are theorists who start out with a priori principles on how they believe a republic should operate. They then carry these principles forward anywhere they are not explicitly rejected by the Framers, not because there is historical proof that the Framers agreed, but because otherwise the system would seem illogical. Lawyers and judges, by contrast, want to see legal and historical evidence to support a rule.

It is simply beyond doubt that the Framers operated by borrowing and adopting common law principles and thinking. There are innumerable cases where we have looked to the British practice and law to help interpret the words of the Constitution. To adopt an interpretation that rejects that meaning, we would want to see historical evidence that the Framers had adopted a radically new interpretation of common legal language. I do not deny that this could happen—the 14th Amendment’s provision on “privileges or immunities,” for example, adopted the abolitionists’ non-orthodox meaning of the phrase they developed in their failed antebellum efforts to prove that slavery was unconstitutional. But there is no clear historical evidence that the Framers of the Constitution understood the citizenship rule in this way.

And if the practice and understanding of citizenship in the antebellum era was one of jus soli, then we would expect to see clear statements given during the ratification of the Reconstruction Amendments that Congress and the states understood “subject to the jurisdiction thereof” to reject its international law and common law meaning and instead adopt the rule of ius sanguinis. I have yet to see Claremont scholars produce historical evidence that meets that standard.

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