Birthright Citizenship and Reasoning by Analogy

Some Fundamental Matters in Constitutional Law

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.

What does that mean? You could be a textualist and just not know. A lot depends on the meaning of the words, “subject to the jurisdiction thereof.”

You could be an originalist and come to one or another conclusion about the meaning of the italicized words. That is, the original public meaning is not obvious, even if one view is best.

You could also be an originalist and conclude, in the end, that you have to reason by analogy, and make a normative judgment, in deciding whether the italicized words give birthright citizenship to the children of illegal aliens or temporary visitors.

I will be exploring that possibility here.

1

The most interesting opinion in the birthright citizenship case came from Justice Kavanaugh. He agreed with the majority that President Trump’s Executive Order on the topic is unlawful.

But he reached that conclusion by reference to a congressional enactment, not the Fourteenth Amendment. In fact, he concluded that the Executive Order did not violate the Fourteenth Amendment, as he would understand it. In that way, he agreed with the dissenters.

But he did not agree with the dissenters’ reasoning. Not at all.

As you already know, the key question is the meaning of “subject to the jurisdiction thereof.” The dissenters essentially understood that term to mean “domiciled in the United States.” A child’s domicile follows the parents’ domicile.

As Justice Gorsuch nicely put it,"the Clause adopted a distinctly American settler’s view of citizenship. One that promises the full ‘dignity and glory of American citizenship’ to any child born in this country to parents who have made this Nation their permanent home, regardless of their race, religion, or national origin.”

Justice Kavanaugh, like the majority, rejected that view. Or if he ultimately got close to it, it is through a route of his own.

2

Here is common ground between the majority and Justice Kavanaugh. As the Court recognized in Wong Kim Ark, there are four “exceptions” to birthright citizenship under the Fourteenth Amendment:

(1) children of foreign sovereigns or their ministers,

(2) children born on foreign public ships,

(3) children of enemies within and during a hostile occupation of part of our territory,

(4) children of members of the Indian tribes.

The majority and Justice Kavanaugh agree on that. The majority treats that as a closed list. That makes things simple.

Justice Kavanaugh is an originalist, but still, he would not treat the list as closed. He writes: “Considering the four exceptions as a permanently frozen or closed set as of the Fourteenth Amendment’s ratification in 1868—such that there can be no subsequent exceptions recognized based on new developments after 1868—is inconsistent with the Court’s longstanding approach to constitutional interpretation in a variety of areas.”

To support that view, he says:

The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.

So: The reasonableness requirement of the Fourth Amendment applies to cars, even though cars did not exist at the founding. The Second Amendment protects semi-automatic handguns even though they did not exist in 1791 or 1868.

These are, in some sense, expansions of constitutional rights. But in Justice Kavanaugh’s view, there are also limitations on, or exceptions to, constitutional rights, and the meaning of those exceptions is not frozen, for “this Court recognizes constitutional exceptions based on new circumstances when the new exception is relevantly similar to those exceptions that existed in 1791 or 1868. This Court’s constitutional precedents do not treat the 1791 or 1868 exceptions as a closed set ‘trapped in amber.’”

“Relevantly similar” - that’s the key. We’re speaking of reasoning by analogy.

I think we need a song now:

3

Here’s where things get especially interesting. Justice Kavanaugh urges that “under basic tenets of constitutional interpretation, other exceptions can be recognized when the new exceptions (i) are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers of the Fourteenth Amendment, and (ii) are relevantly similar to the four previously recognized Wong Kim Ark exceptions.” (“Relevantly similar,” one more time.)

In Justice Kavanaugh’s view, “that interpretive principle would support additional exceptions for children born to foreign citizens unlawfully or temporarily in the country.” Here’s why:

{S]ignificant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated. And the Framers likely would not have anticipated (and presumably would not have intended) the odd result of granting a substantial birthright citizenship benefit to (i) those foreign citizens who violate U. S. immigration law and illegally enter or overstay and then have children in the United States over (ii) those foreign citizens who follow U. S. immigration law and have children in their home countries while seeking to lawfully immigrate to the United States. Nor presumably would they have wanted to grant constitutional birthright citizenship to children of foreign citizens unlawfully in the country while simultaneously denying constitutional birthright citizenship to children of tribal American Indians. So too, the issue of temporary visitors who give birth in the United States presents a new and different circumstance than in 1868 given the significant changes in immigration laws and travel.

Note well: The word “presumably,” used twice in the italicized paragraph, is doing a lot of work here.

Why does Justice Kavanaugh reach these conclusions, you might ask? What is he thinking?

Here’s the answer: “The only apparent principle unifying the four disparate exceptions listed by the Court in Wong Kim Ark—especially in light of the exception for tribal American Indians—is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign.”

There we have it: a general principle, unifying the four exceptions, and applying to cases that the framers and ratifiers did not resolve and could not have resolved. Note that the general principle is pretty broad. For better or for worse, it extends far beyond the four exceptions. (Fit and justification, anyone? Dworkin, anyone?)

4

Here, then, is the division between the majority and Justice Kavanaugh. The majority says: four exceptions, period. Justice Kavanaugh says: four exceptions, supported by a general principle that applies to contexts that could not have been anticipated at the time of the founding.

Who’s right? Let’s consider the Fourth Amendment and cars, or the First Amendment and the Internet. Why are these easy questions? In short: A car is relevantly similar to a home, and the Internet is relevantly similar to a newspaper. That is self-evident. The broader point is that to know whether X is analogous to Y, we need to know, as Justice Kavanaugh says, whether it is “relevantly similar.” So a judgment of analogousness depends on a principle, demonstrating that X is relevantly similar to Y, because there is nothing that plausibly distinguishes X from Y, and because the principle that supports X applies to Y as well.

A judgment of relevant similarity is not, in the legal context, a judgment about a fact. It is a normative judgment. The principle is not a matter of history. It is constructed. It is constructed by judges. (It has to be. Who else is going to do it?)

Is this a problem for originalists? It might well be, if we think that the original public meaning is simply a matter of fact. It need not be, if originalists agree that sometimes they have to make judgments of analogousness, which are not (simply) a matter of identifying the original public meaning.

5

Was Justice Kavanaugh right? Consider two possible answers:

1. The four exceptions to birthright citizenship should be taken to be closed, not open. Even if something is analogous to one or more of those exceptions, it is not itself an exception unless it is one or more of those exceptions. (It could be that the original public meaning of the Fourteenth Amendment resolves this issue in favor of “closed.” That is historically possible. Or it could be that there is no historical answer - no original public meaning, on the question of open or closed.)

2. The four exceptions may not be closed, but they are not wide open. We should not take them to suggest that children lack birthright citizenship whenever their parents “were not U. S. citizens and were citizens of other nations, whether tribal or foreign.” That principle is far too broad. It does not fit with the historical evidence we have. Also, it might not be very nice. (Also, the four exceptions might not be supported by the same general principle. And if they are, the principle might be narrow.)

How should we evaluate these answers? One way to do that is to ask Dworkinian questions about fit and justification. (I know that I am being brisk here.) Kavanaugh’s suggested exception is indeed pretty broad, and it does run into fair objections from the relevant history. But his particular views on the children of illegal aliens are not obviously inconsistent with that history, and the same is true for his views on the children of temporary visitors. Whether we accept those views, or reject them, might, in the end, depend on the question of justification - that is, on whether one or another conclusion makes our constitutional order better rather than worse.

A tentative view: In the end, different conclusions, on that issue, might be what separate the majority from Justice Kavanaugh, at least if (but only if?) we stipulate that the ratifiers really did not make a judgment about whether the list is open or closed, and about the disputed cases.