Josh Blackman recently published at Volokh Conspiracy an interview with Fifth Circuit Judge James Ho. Among other topics, Judge Ho had this brief comment on birthright citizenship under the Fourteenth Amendment:
[A]nyone who reads my prior writings on these topics should see a direct connection between birthright citizenship and invasion. Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be. It’s like the debate over unlawful combatants after 9/11. Everyone agrees that birthright citizenship doesn’t apply to the children of lawful combatants. And it’s hard to see anyone arguing that unlawful combatants should be treated more favorably than lawful combatants.
Judge Ho has written thoughtfully on the birthright citizenship issue from an originalist perspective (see here), and I generally agree with him (see my article Originalism and Birthright Citizenship), so I hesitate to disagree — but I will, nonetheless.
The citizenship clause of the Fourteenth Amendment does not say anything directly about invasion. It gives constitutional citizenship to all person “born … in the United States and subject to the jurisdiction thereof.” The invasion issue arises from a longstanding rule in English law holding that invading armies were an exception to the general rule that people born in English territory were English subjects, because English sovereign authority could not operate in areas held by a hostile force. Thus the U.S. constitutional rule, derived for the English rule, would also not seem to apply to hostile armies within U.S. territory. That is, a person born under the control of a hostile army in U.S. territory was “born … In the United States” but not, as a practical matter, “subject to the jurisdiction thereof.” It was not the fact of being an invader that made the citizenship clause inapplicable, but rather the fact of the U.S. not being able to exercise jurisdiction over a hostile army.
Applied to the situation of illegal immigration, it follows that the question is not whether the current situation at the southern border is an “invasion” within the meaning of Article I, Section 10 (which allows states to respond with warlike measures if “actually invaded”). Judge Ho has argued that the current situation is akin to an invasion, as have Andrew Hyman and Rob Natelson here. Even assuming they are right, that’s not determinative of the citizenship question. The citizenship question is whether the children of persons present in the United States illegally are “subject to the jurisdiction” of the United States.
In this respect, children of persons present in the United States illegally are different from persons born subject to the control of a hostile army. The United States can and does exercise jurisdiction over the former, while it cannot, as a practical matter, exercise jurisdiction over the latter. And under the text of the Fourteenth Amendment, that is a critical difference. Thus in my view characterization of the situation at the southern border as an invasion does not affect the the citizenship issue, which is about jurisdiction, not invasion.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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