Birthright Citizenship and the Obscure Right of Expatriation

As most people are now aware, President Trump issued an executive order on Jan. 20 purporting to upend the settled constitutional understanding of birthright citizenship.

For over a century, there has been a general consensus that the 14th Amendment, as its text provides, grants citizenship to “[a]ll persons born or naturalized in the United States,” including children born to noncitizens, to visitors, and to unauthorized entrants to the country. By contrast, the executive order rests on the position that the 14th Amendment grants citizenship only to the children of lawful residents and excludes children of lawful temporary visitors and unlawful entrants, that is, children born to “a mother who was unlawfully present” or to a “mother whose presence in the United States … was lawful but temporary,” assuming the father was not a citizen or lawful permanent resident. Four courts, in unsparing language, have now rejected the constitutionality of the order. One court, for example, stated that the order’s “novel interpretation of the Citizenship Clause contradicts the plain language of the Fourteenth Amendment and conflicts with 125-year-old binding Supreme Court precedent.” And scholars, including Evan Bernick, Ilya Somin, Michael Ramsey, and Marty Lederman have demonstrated the constitutional absurdity of the order and the arguments in support of it.

But, on Sunday, two law professors, Randy Barnett and Ilan Wurman, published an opinion piece in the New York Times suggesting that part of the executive order is not as absurd as consensus opinion holds it. Notably, Barnett and Wurman do not address the executive order’s exclusion from citizenship of the children of legal visitors to the United States, and they do not ultimately take any actual position on the constitutional issue of birthright citizenship for the children of immigrants who entered the country without authorization. Nor do they mention, let alone address, the wealth of scholarship about the meaning of the text of the 14th Amendment. They write the piece to suggest the concept of an argument about what they see as potential ambiguity in the Citizenship Clause’s key phrase: “subject to the jurisdiction thereof.” The prevailing view for over a century has been that this phrase means simply that if a person is subject to U.S. laws when born within the United States, that person is a birthright citizen under the Citizenship Clause. And, as the Supreme Court explained in 1898 in the foundational case of United States v. Wong Kim Ark, four narrow categories of people technically born in the United States were not necessarily “subject to [its] jurisdiction” under settled common law and U.S. precedents: (a) Native American children born within their tribe’s jurisdiction, as decided in Elk v. Wilkins; (b) children of diplomats who were not subject to U.S. law; (c) children born on foreign ships in U.S. territory; and (d) children of soldiers of an invading or occupying military force.

The crux of Barnett and Wurman’s view is what Jed Shugerman has rightly called an “allegiance-for-protection” theory. Instead of looking at who was subject to U.S. law, they put heavy reliance on the concept of “allegiance” and posit the possibility that a person who enters the country without permission—without “amity”—may not have pledged sufficient allegiance to the country and, as such, that person may not come within the protection of the United States. (All of their claims are hedged as “possibilities,” not arguments about the right answer, so I hedge accordingly here as well.)

Scholars have already responded and demonstrated why the order and this allegiance-for-protection theory contradicts the normal tools of constitutional interpretation—text, history, precedent, and, particularly, original meaning. Moreover, as both Shugerman and Joshua Freundel have shown, the sources on which the opinion piece relies actually provide robust support for the existing consensus about birthright citizenship and contradict the hypothetical argument put forward by Barnett and Wurman.

But there is another fundamental problem with the allegiance-for-protection theory, one that becomes evident in light of the contemporary history and consideration of expatriation, the technical term for the renunciation of citizenship. Underlying Barnett and Wurman’s hypothesis is the presumption that the “subject to the jurisdiction” language in the Citizenship Clause was intended to exclude certain populations from citizenship—that is, i.e., those who had not given sufficient “allegiance.” But this is not the only, nor the best, reading of the purpose of this language. The phrase could also be understood as an attempt to protect certain populations from the automatic imposition of citizenship, granting them an exception from the general rule of birthright citizenship, or jus soli, adopted in the Citizenship Clause.

I am not and do not claim to be a scholar of the 14th Amendment, and I defer to and have learned much about the issue of birthright citizenship from the commentary and scholarship of, among others,  Bernick, Somin, Michael Ramsey, and Gabriel Chin and Paul Finkelman. But several years ago, inspired by a project I had worked on as part of the Office of Legal Counsel, I did extensive research on the related subject of expatriation. Indeed, the very first piece I wrote for Lawfare drew on that research and discussed the fundamental differences in the way the United States and Great Britain approached the possibility of citizenship-stripping in light of their respective citizens going to fight for ISIS.

The history of the debate over expatriation, which is inseparable from the debate over concepts such as citizenship and allegiance, is fascinating in its own right. But understanding it also sheds some light on the understanding of citizenship embodied in the 14th Amendment. And it provides an additional reason why recent suggestions that the country might have been wrong about the meaning of the Citizenship Clause for well over 100 years are not only supremely misguided but omit vitally important context about the understanding of citizenship at the time the 14th Amendment was passed by Congress and ratified by the states. As explained below, the animating principle of expatriation provides additional insight into why the key language of the 14th Amendment—”subject to the jurisdiction thereof”—should be read not to exclude certain populations of people but to acknowledge and respect the right to make choices about one’s own citizenship and allegiance.

Unknown to many, the Reconstruction-era Congress, not long after sending the 14th Amendment to the states for ratification, passed an “Act Concerning the Rights of American Citizens in Foreign States,” otherwise known as the Expatriation Act of 1868, which recognized the “right of expatriation” as a “natural and inherent right of all people.” As Peter Spiro has chronicled, the passage of this act was inspired in part by national outrage over Great Britain’s recent prosecution and conviction of two Irish-born Civil War veterans for treason. The outrage arose because the British prosecution was pursuant to procedures applicable only to British citizens under the theory of “perpetual allegiance”: the idea that the veterans, being born in Ireland, owed perpetual allegiance to Britain and remained British citizens. Their birth in Ireland made them British citizens under the prevailing common law doctrine of jus soli. And, under the theory of perpetual allegiance, the two lacked the authority to unilaterally relinquish that birthright citizenship or renounce their allegiance. 

The right of expatriation has been forgotten as one of the foundational cornerstone principles of the United States. Thomas Jefferson declared expatriation a “natural right which all men have” in the 1779 Virginia Code, and Virginia legislator William Giles called it “the foundation of our Revolution” in 1797. But the debate over expatriation and perpetual allegiance was present at the founding of the United States, featured prominently in the impressments that led to the War of 1812, and was the subject of contradictory judicial opinions. My 2018 article on expatriation traces this history in detail, including how it relates to more recent efforts to forcibly strip citizenship from people who engage in terrorism or other similar activities. Just as the Attorney General Edward Bates opinion cited in Barnett and Wurman’s piece says there is no certainty about citizenship in the pre-14th Amendment Constitution, antebellum executive branch writings discuss competing views of expatriation. But, just as the 14th Amendment settled the citizenship debate unequivocally, the Expatriation Act settled the debate over expatriation and perpetual allegiance unequivocally.

As that act represents, a fundamental tenet of citizenship, allegiance, and expatriation understood by the Reconstruction Congress was that a competent adult had the inherent right to choose his or her allegiance and, consequently, citizenship. Citizenship could not be forced on anyone—a citizen of a country had the natural right to change his or her citizenship and allegiance. As Shugerman helpfully illustrates, citizenship meant that a person owed allegiance to a particular sovereign. At the time of the passage of the 14th Amendment, the United States had resoundingly rejected the idea that such allegiance was “perpetual.” In other words, the idea of a country “imposing” citizenship on individuals against their will would have been anathema. But, at the time, as Spiro has described, dual allegiance—and thus dual citizenship—was disfavored. The current oath required for naturalization bears vestiges of that understanding, requiring attestation that the individual “absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which [she has] heretofore been a subject or citizen.” The concept of dual or multiple citizenships and allegiances became widely accepted only more recently. In other words, becoming a citizen and pledging allegiance  to one country often required the relinquishment of citizenship in and allegiance to another.

Understanding this inherent right of expatriation, which originated in and in some ways altered the same common law tradition on which the Court and scholars rely to understand the Citizenship Clause, demonstrates a fundamental problem with the executive order’s exclusionary paradigm and Barnett and Wurman’s suggestion of allegiance-for-protection. The exception for populations who were not “subject to the jurisdiction” of the United States should be understood as a means to acknowledge those  populations’ inherent right not to become citizens; it represented a decision not to impose citizenship on the children of people who had never affirmatively chosen to be subject to U.S. law simply because of the accident of their territorial presence. Scholars of Indian law understand this protection as the basis for excluding children born under tribal jurisdiction—the tribes did not necessarily want to be assimilated into the United States as citizens. They were separate sovereigns. A similar analysis applies to the other three categories set out in Wong Kim Ark: diplomats serving their home country within the United States, foreign citizens serving on foreign ships, and soldiers of invading and occupying armies. These classes of individuals were serving their own sovereign within the United States territory but had not invoked the jurisdiction or protection of the United States. If the Citizenship Clause had made their children citizens, then it would have compelled their children’s allegiance to the United States and potentially called into question their allegiance to—and citizenship in—their parents’ sovereign country.

As the opinion by Attorney General Bates and the other sources cited by Barnett and Wurman make clear—not to mention Wong Kim Ark and United States precedent for the past century—birthright citizenship, jus soli, was the rule, the default. As Bates says, it is “a historical and political truth so old and so universally accepted that it is needless to prove it by authority,” that “nativity furnishes the rule, both of duty and or right, as between the individual and the government.” The 14th Amendment constitutionalized that foundational principle and removed any doubt that every child born in the United States—no matter the status of her parents—automatically became a citizen and was thus presumed to bear allegiance to the country until and unless that person exercised her right of expatriation to change her citizenship. As Finkelman and Chin have shown persuasively, the Citizenship Clause purposefully adopted a categorical rule of birthright citizenship that included the children of individuals in the country illegally and all children born into enslavement in the country even if their parents had been brought into the country illegally or by force.

The executive order and Barnett and Wurman’s hypothetical explanation for why some of the order may be defensible interpret the key language “subject to the jurisdiction thereof” to exclude certain populations from birthright citizenship because of their failure to sufficiently demonstrate allegiance. But the contemporary understanding of the right of expatriation makes clear that the dominant paradigm of citizenship was not exclusionary but instead based on volition—the choice of individuals. The 14th Amendment did not put the burden on parents to prove “allegiance” in order to consider their children citizens; it adopted birthright citizenship as a rule but incorporated the right of expatriation if desired. Neither Wong Kim Ark or his parents had relinquished—nor could relinquish—their citizenship and allegiance to China. But they had chosen to live temporarily in San Francisco. As a result, Wong Kim Ark was a birthright citizen under the plain language of the 14th Amendment, despite his and his parents lack of “complete[] subjection to the United States.” Had he wanted to relinquish his citizenship later, he could have done so under his right of expatriation.

A better understanding of the purpose of the “subject to the jurisdiction” phrase—one informed by the right of expatriation—would be as an acknowledgement that the normal rule of birthright citizenship should not apply to narrow populations of foreign citizens who had remained outside of the scope and coverage of United States law, who had shown no intent to invoke the jurisdiction of the United States, and who had made no affirmative act to choose U.S. citizenship for themselves or their children. The phrase prevented the 14th Amendment from imposing involuntary citizenship on the children of these populations. From the perspective of the recognized right of expatriation, the four exceptions set out in Wong Kim Ark could be understood as specific instances in which it would be uniquely inappropriate to apply the jus soli default rule of citizenship. Forcing those populations’ children to be U.S. citizens, subject to U.S. law, and imperiling their citizenship to their parents’ home sovereign would be contrary to the principle of voluntary citizenship.

As the Expatriation Act of 1868 demonstrates unambiguously, the Reconstruction Congress valued the will of the individual in making decisions about citizenship and allegiance. The “subject to the jurisdiction thereof” carve-out—drawing on well-established common law principles—can be read entirely consistently with that understanding, ensuring that the Citizenship Clause did not make involuntary citizens of the children of individuals who had not come under the jurisdiction of U.S. law and had never indicated an intent to exercise their right to choose U.S. citizenship for themselves or their children. In this way, the carve-out takes into account the parents’ presumptive will. One of the cases cited by Barnett and Wurman tracks this reasoning almost exactly. In the 1830 case of Inglis v. Trustees of Sailor’s Snug Harbor, the Court decided that Inglis was not a citizen because his father had chosen British citizenship during the Revolutionary War while Inglis was a child, and Inglis had “never attempted to throw off” that allegiance “by any act disaffirming the choice made for him by his father.”

Barnett and Wurman invert the prevailing presumption applicable to citizenship. They claim that because unauthorized immigrants “gave no obedience or allegiance to the country when they entered,” then their children (potentially) could be considered outside the “protection” or “jurisdiction” of the United States. They posit a 14th Amendment that excludes from citizenship the children of unauthorized entrants even if those people came to the United States because they wanted their children to be born in the United States and to be U.S. citizens. But that suggestion contradicts the fundamental concept of expatriation and choice of citizenship to which the Reconstruction Congress adhered. At that time, the United States did not meaningfully restrict immigration. And the purposeful transfer of citizenship was an essential building block of the United States, as the history of the right of expatriation demonstrates.

To be clear, the text of the 14th Amendment does not incorporate intent; nor am I suggesting it adopted a test based on intent. Instead, it adopts the well-established, categorical rule of birthright citizenship. The text of the Citizenship Clause, including the phrase  “subject to the jurisdiction thereof,” should be interpreted pursuant to our well-established principles of constitutional interpretation—text, history, precedent, original public meaning, common law, and historical practice. Those methods of interpretation all point to the same result—the one to which the United States has adhered for over a century. But, in addition to all of these traditional tools of interpretation, the exception made to the default rule of jus soli citizenship for those not “subject to the jurisdiction” of the United States also makes sense in light of the Reconstruction Congress’s elevation of individual choice in matters of citizenship and allegiance. That principle could provide some insight into the specific intent of the framers with respect to the children of unauthorized entrants, an inquiry that, as Ramsey notes, is the only potential ambiguity in the interpretation of the Citizenship Clause because of the country’s lack of any materially restrictive immigration laws at that time.

The “subject to the jurisdiction” exception should thus be understood as intended to protect and respect individual choice of allegiance for certain populations of foreign citizens—not as excluding the children of people choosing to live or give birth within the jurisdiction of the United States and not as requiring those people to demonstrate some undefined amount of “allegiance” before their children could be entitled to citizenship. No official or branch of the United States has ever understood the Citizenship Clause to have this exclusionary effect. And Barnett and Wurman do not provide any evidence that the framers of the 14th Amendment intended it that way or that the public understood it that way. The text does not support it. Nor does the common law. And principles expressed in the Expatriation Act of 1868 refute it.