Last week I joined a group of distinguished scholars on this amicus brief filed in support of plaintiffs/appellants in Tuaua v. United States, the Samoan citizenship case now at the D.C. Circuit. As I’ve discussed before, the issue is whether the Constitution allows the United States to treat inhabitants of American Samoa (a U.S. territory) as something less than American citizens (they are called “non-citizen nationals”).
The brief argues that the Constitution does not recognize this status. As a matter of the Constitution’s original meaning, I think that is clearly correct. Under the first sentence of the Fourteenth Amendment, “All persons born … in the United States and subject to the jurisdiction thereof, are citizens of the United States…” American Samoa is a U.S. territory, part of the United States and subject to its jurisdiction. As the brief explains, in the years prior to the adoption of the amendment, with exceptions not relevant, U.S. law recognized only citizens and aliens — not any intermediate status. In particular, there was no doubt at the time that persons born in U.S. territories (not within any state) were U.S. citizens.
This became awkward around the beginning of the 20th century, when the United States acquired overseas territories (especially after the Spanish-American War) with substantial non-White populations. In the racist climate of the time, the U.S. government found a way to call these people something less than full citizens. But the constitutional basis of that status was never made clear, and indeed it seems that there is not one. Either overseas territories are part of the United States (in which case the inhabitants are U.S. citizens) or they are not part of the United States (in which case the United States lacks authority to excercise long-term sovereign power over them).
Notably, under British law in the eighteenth and nineteenth centuries, inhabitants of overseas parts of the British empire, such as India, were considered British subjects because they were born within the dominions of the British monarch. See Henry S. Q. Henriques, The Law of Aliens and Naturalization (1906), pp. 63-64. In contrast, Henriques explains, inhabitants of places under British protection (by treaty, for example) but not formally part of the empire, were not British subjects. Thus there is little historical ground for thinking that U.S. law, as constitutionalized in the Fourteenth Amendment, would not have similarly seen persons born in the overseas sovereign dominions of the U.S. government as being born “in the United States.”
(Note: a second amicus brief, signed by numerous prominent constitutional law scholars including Sanford Levinson, Gary Lawson and Andrew Kent, argues that the Supreme Court’s decisions in the early 20th Century in the so-called Insular Cases are not to the contrary).