created by Ethan-Wakefield on 23/01/2025 at 22:45 UTC
991 upvotes, 8 top-level comments (showing 8)
I’ve been seeing a lot of arguments that 14A was never meant to protect birthright citizenship. It was meant to provide citizenship for newly freed slaves. People crossing the border and having a child to assert citizenship for the child is a loophole in this argument, and the conclusion is that the loophole should be closed.
But I’ve seen other people say that birthright citizenship was always policy in America, and that 14A was just making it explicitly protected. But it was always part of British common law. So under this argument, there’s no loophole. 14A is functioning as intended.
What is the historical evidence? Was birthright citizenship intended to grant citizenship to the children of people who entered the country illegally? Was birthright citizenship commonly accepted in America prior to 14A?
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Comment by [deleted] at 23/01/2025 at 23:17 UTC
218 upvotes, 1 direct replies
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Comment by ConstableJones at 24/01/2025 at 00:19 UTC*
899 upvotes, 3 direct replies
Tl;dr, just read the bold sentences
To say that the fourteenth amendment “granted” citizenship to the children of immigrants, while correct, understates the case. If we start with what the amendment “granted,” we invite the assumption that the amendment *invented* birthright citizenship, or that people born in the U.S. before its enactment could only hope for citizenship by naturalization or descent.
That assumption would be wrong. **The Fourteenth Amendment codified a rule of citizenship that** ***already prevailed*** **in American law. It was intended to** ***restore*** **a rule, in force before the** ***Dredd Scott*** **decision, that gave citizenship to the children of virtually every free person born on U.S. soil — including all manner of immigrants.**
Justice Joseph Story gave a summary of the rule in *Inglis v. Trustees of Sailor's Snug Harbor* 28 U.S. 99 (1830): “The rule commonly laid down in the books is, that every person who is born within the ligeance of a sovereign is a subject; and, e converso, that every person born without such allegiance is an alien.” He went on:
Two things usually concur to create citizenship; first, birth locally within the dominions of the sovereign; and secondly, birth within the protection and obedience, or in other words, within the ligenance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to the sovereign, as such, de facto.
Story described the rule as excluding only a few people, like foreign ambassadors, persons born at sea, and occupying enemy soldiers.
Story might have also mentioned that the rule was limited to the children of “free persons,” thus excluding the children of slaves. *State v. Manuel* 20 N.C. 144 (1838), The rule also excluded Native Americans living in tribes, on the reasoning that, “[t]hough born within our territorial limits, the Indians are considered as born under the dominion of their tribes. They are not our subjects, born within the purview of the law, because they are not born in obedience to us.” *Goodell v. Jackson ex dem. Smith*, 20 Johns. 693, (N.Y. 1823).
To those not excluded by the above categories, the rule was quite generous in scope. As one treatise put it,
Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.
William Rawle, A View of the Constitution of the United States of America, 2d Edition, 1829, Ch. IX.
Although the rule excluded the children of slaves, there was no firm qualification based on race or eligibility for naturalization.**The rule even gave citizenship to children born of temporary visitors in the country,** as discussed at length in the case *Lynch v. Clarke* 3 N.Y.Leg.Obs. 236 (1844). Justice Story thought a rule barring citizenship in such circumstances might be prudent, but acknowledged that “it would be difficult . . . to assert, that in the present state of public law such a qualification is universally established.” *Commentaries on the Conflict of Laws,* 1834.
Chancellor James Kent put the rule another way in his influential Commentaries on American Law, 1826, Ch. 25: “Natives,” he said, “are all persons born within the jurisdiction of the United States.” “An alien,” conversely, “is a person born out of the jurisdiction of the United States.” Kent’s Commentaries were often cited in congressional debates and contemporary judicial decisions. *See*, *e.g.* *Bradlie v. Maryland Ins. Co.* 37 U.S. 378, 398 (1838) [citing “Mr. Chancellor Kent and his learned commentaries”]; see *also* Cong. Globe 35^(th) Cong., 2^(nd) Sess., 983 [Rep. John Bingham citing Kent’s commentaries]. **Chancellor Kent’s “jurisdictional” framing of the common law rule is probably the origin of the “jurisdictional” language in the Fourteenth Amendment’s citizenship clause, and the replication of this language is evidence that the framers intended the citizenship clause to ratify the common law rule**
Comment by [deleted] at 23/01/2025 at 23:38 UTC
66 upvotes, 0 direct replies
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Comment by Standard_Raccoon8402 at 24/01/2025 at 17:43 UTC
3 upvotes, 1 direct replies
This is such a fascinating question. The debate over the 14th Amendment’s intent really shows how much historical interpretation shapes modern policy. Anyone know of pre-14A cases or policies that explicitly dealt with birthright citizenship? Would love to see examples
Comment by [deleted] at 24/01/2025 at 14:29 UTC
7 upvotes, 0 direct replies
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Comment by [deleted] at 24/01/2025 at 00:52 UTC
1 upvotes, 1 direct replies
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Comment by [deleted] at 24/01/2025 at 05:16 UTC
-13 upvotes, 0 direct replies
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