Birthright citizenship and the 13th Amendment

This is not a typo. Of course it is the 14^th Amendment that contains the citizenship clause and so is front and center in every speech, press release, sound bite, newspaper editorial, law review article, and tweet about the birthright question. In a not very close second place in the citation of legal sources on the issue is the jus soli (“right of the soil” or “law of the soil”) birthright citizenship of the British common law, its incorporation into the American common law, and its infamous and unprincipled treatment in antebellum courts.

 

Much farther behind are citations to the 13^th Amendment. In fact, a little internet research, admittedly very little, turned up no references to the bearing of the language of the 13^th Amendment on citizenship. Yet that amendment, which preceded the 14^th by only a few months through the early stages of the amendment process, includes the clause “subject to their jurisdiction.” That is, subject to the jurisdiction of “the United States.” The phrase in the 14^th Amendment on which the birthright legal revisionists base their claims is “subject to the jurisdiction thereof [the United States].” It usually makes good sense to suspect that two very similar legislated phrases may well be related in meaning where the time period is the same, the social and political circumstances the same, the drafters the same, and the voters the same. This is surely not less so when the two pieces of legislation were closely related part of a single political program – here, reconstruction.

It may be thought that nothing semantic can be drawn from “subject to the jurisdiction” in the 13^th that bears on “subject to the jurisdiction thereof” in the 14^th because what is subject in the former is “any place” and in the latter “all persons.”  Jurisdiction over persons and jurisdiction over places are different things. The two separate contexts, however, both support a natural reading of “jurisdiction,” one that is common sense, robust, and not technically lawyerish. 

 

There is no room for doubt that, had people at the time been asked, they would have said that the 13^th Amendment would apply to, and prohibit slavery in, all of the Territory of New Mexico, including its southern sections even while the Confederacy still asserted sovereignty there. The scope of “the jurisdiction thereof” in the 13^th was coterminous with the sovereignty of the United States.

Did the force of the 13^th Amendment extend into a foreign embassy in DC? Perhaps not, as, traditionally, the foreign government there has primary sovereignty. US police cannot enter even in hot pursuit of a fleeing felon. For the same reason criminal jurisdiction of neither Maryland nor the US extends to accredited ambassadors, with their diplomatic immunity. The ambassador’s child born in the United States does not get birthright citizenship. As other non-citizens are uncontroversially within the police power that comes with sovereignty, they are also subject to the jurisdiction thereof. 

A frontier town in a US territory, populated entirely by non-Citizens, even non-Citizens having crossed unlawfully from Canada, would not be beyond the reach of 13^th Amendment jurisdiction. Nor more would they be outside the scope of birthright citizenship jurisdiction in the 14^th Amendment.

The use of “jurisdiction” in the 13^th Amendment  reinforces the natural reading of “jurisdiction” in the 14^th. The United States has jurisdiction where its enforcement powers run, with respect to persons as well as territory.

Here is a little puzzle for the birthright denialists. A and B were brought unlawfully into the US as slaves in 1855.Under the law of Georgia, they were not citizens. Let us suppose that, pursuant to the law of nations, they are citizens of the African country from which they were abducted. A child is born to them in Georgia. The rebellion of Georgia and its confederates fails, and the 13^th, 14^th, and 15^th Amendments become law. Is the child a citizen?

How can the answer be anything but “yes”? If the citizenship clause of the 14^th Amendment was understood to have any effect at all, surely it insured that this child born in slavery on United States soil would be a United States citizen. By the theory of the denialists, however, that could not be. The parents, at the time of birth, were unlawfully here and so owed their “primary allegiance,” not to the country that in fact had jurisdiction over them, but to the country of their citizenship. 

Finally, it is worth repeating another anti-denialist point fairly frequently made. It has long been a maxim that interpretations of an enactment in derogation of the common law are disfavored. If there really were an ambiguity in “subject to the jurisdiction thereof,” as I think there is not, the reading that preserves the common law principle of jus soli, birth-in-the-country, citizenship, should be given the preference.