EXECUTIVE SUMMARY “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and the state wherein they reside.” THE CITIZENSHIP CLAUSE OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION, SECTION 1 The proposed legislation attempts to change the nature of citizenship. Its interpretation of the Citizenship Clause contradicts the plain language and the intent of the framers of the 14th Amendment. Moreover, this proposed statute clearly violates the Supreme Court‘s long established jurisprudence on citizenship for individuals born within the United States. If enacted, the proposed legislation would likely be challenged, resulting in the State of [ ] spending large sums of money in a failed effort to defend the legislation and possibly exposing the State of [ ] to liability to private plaintiffs under federal civil rights legislation if the State sought to enforce the statute. Additionally, the proposed statute is attempting to revive the long-abandoned concept of primary state citizenship, which suggests that states can define their own citizenry without offending the right to United States citizenship. However, the Constitution clearly states that state citizenship is derivative of national citizenship. Pursuant to the 14th Amendment, a citizen of the United States is a citizen of the state in which he or she resides; a state is not legally permitted to choose its citizens. Further, the right to be a citizen of the state is enshrined as one of the privileges or immunities of national citizenship. Denying state citizenship to a population of American citizens therefore violates both the Citizenship Clause and the Privileges or Immunities Clause of the 14th Amendment.

I.

AMERICAN CITIZENSHIP AND THE 14TH AMENDMENT A. The Constitutionally-protected principle of jus soli grants citizenship to all individuals born within the United States

Prior to the adoption of the 14th Amendment in 1868, U.S. citizenship was not defined by the Constitution, but by the longstanding common law principle of jus soli, which granted an individual ―citizenship in a nation by virtue of his birth in that nation or its territorial possessions.‖1 U.S. courts rejected the alternative rule—jus sanguinis—in which ―a person acquires the citizenship of his parents.‖2 Under jus soli, all children born on U.S. soil were U.S. citizens, with only two narrow exceptions: the children of foreign diplomats and the children of occupying enemy soldiers.3 The proposed statute attempts to eliminate citizenship by birth and resurrect citizenship determined by parentage, violating the fundamental constitutional principle that all children born on U.S. soil begin life on equal footing under the law. The only time in our country‘s history when citizenship depended on parentage as a matter of constitutional law was the eleven year period following the notorious Dred Scott decision, in which the U.S. Supreme Court denied citizenship by birth to African-American slaves and their descendants.4 The Civil Rights Act of 1866 (the ―Civil Rights Act‖) and the first sentence of the first section of the 14th Amendment (the ―Citizenship Clause‖) conclusively overturned the Dred Scott decision and reaffirmed the jus soli principle, guaranteeing U.S. citizenship for the descendants of slaves and for ―virtually everyone born in the United States,‖ including the U.S.born children of aliens.5 The 14th Amendment preserves two common law exceptions through the phrase, ―and subject to the jurisdiction thereof,‖ since diplomats and foreign soldiers were not subject to U.S. law.6 Congress clearly intended to grant citizenship to all children born in the United States, regardless of the immigration status of their parents, as the legislative history of the Civil Rights Act demonstrates. The Civil Rights Act states that ―all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.‖7 Congress understood that this would include children born to aliens, as shown by the Senate debates concerning the children of Chinese immigrants, when it was noted that under the Act ―the child of an Asiatic is just as much a citizen as the child of a European.‖8 During the Senate debates about the 14th Amendment, Senator Jacob Howard proposed language making the grant of citizenship by birth unequivocally universal and inclusive of children born to foreigners. Howard declared, ―[t]his amendment . . . is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.‖9 He noted that while the common law exceptions had been preserved, the 14th Amendment did ―include every other class of persons.‖10 Congress ultimately adopted Howard‘s language, enshrining the right to citizenship by birth as a constitutional right. B. The Constitution ensures citizenship to all children born in the United States, regardless of their parents’ immigration status. 1

By inventing a new concept of ―jurisdiction,‖ the proposed statute aims to circumvent the 14 Amendment. Part (b) of the statute reads:
th

(b) For the purposed of this statute, subject to the jurisdiction of the United States has the meaning that it bears in Section 1 of the Fourteenth Amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country. For the purposes of this statute, a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without citizenship or nationality in any foreign country. The proposed statute claims to follow the 14th Amendment. However, these words have a precise and universally accepted legal meaning, which does not allow for the strained interpretation that proponents demand we adopt. Black‘s Law Dictionary defines ―jurisdiction‖ as ―[a] government‘s general power to exercise authority over all persons and things within its territory[.]‖11 This definition is confirmed by over one hundred years of Supreme Court rulings, a plain reading of the Constitution‘s text, and common sense. In 1898, the Supreme Court issued a seminal decision on the right of citizenship granted by the 14th Amendment in United States v. Wong Kim Ark.12 The case addressed the question of whether the Chinese Exclusion Act, which barred entry into the United States of ―persons of the Chinese race, especially Chinese laborers,‖13 could be applied to deny citizenship rights to their U.S. born children. After a lengthy discussion of the history of the 14th Amendment and the rules of citizenship under the common law, the Court held that the Constitution means what it says, namely, that ―all persons‖ born within the territory of the United States are citizens, regardless of the nationality of their parents. The Court explained that the phrase ―subject to the jurisdiction thereof‖ was intended only to confirm the two pre-existing exceptions to jus soli for the children of foreign diplomats and occupying enemy soldiers who are treated as if they are not physically present in the country of their birth and thus are not subject to its laws or jurisdiction. All other children are subject to the country‘s laws, however, and are necessarily subject to its jurisdiction. The statute‘s proponents claim that the Framers, in saying, ―jurisdiction,‖ actually meant, ―allegiance.‖ In doing so, the proponents are misapplying a modern day definition to an ancient common law term. Today, we understand ―allegiance‖ to refer to an individual‘s pledge of loyalty to the government. Under the common law, however, the term simply referred to the state of being within the territory of the king and under his power. As the Supreme Court explained, allegiance was ―not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance.‖14 The Court has ruled definitively on this issue, stating, ―[t]he amendment, in clear words and manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or

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subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.‖15 The breadth of this language decidedly includes children born in the United States to parents who are not legally resident, a fact consistently reinforced by the Supreme Court in later decisions. In Plyler v. Doe, the Court examined the 14th Amendment‘s Equal Protection Clause and firmly rejected the notion that ―persons who have entered the United States illegally are not ‗within the jurisdiction‘ of a State even if they are present within a State‘s boundaries and subject to its laws.‖16 In making this determination, the Court critically noted that ―no plausible distinction with respect to Fourteenth Amendment ‗jurisdiction‘ can be drawn between resident aliens‖ based on the legality of their arrival.17 Three years later, in INS v. Rios-Pineda, an unanimous Court further declared that a child born in the United States to undocumented immigrant parents was a United States citizen by the fact of her birth.18 Most recently, the Court in Hamdi v. Rumsfeld noted that a person born in Louisiana to parents of Saudi Arabian nationality was undoubtedly ―an American citizen,‖19 despite objections that his parents were aliens on temporary work visas at the time of his birth.20 A plain reading of the 14th Amendment—and common sense—tell us that there can be no debate as to its meaning. As James Ho, former Solicitor General of Texas observed: When we speak of a business that is subject to the jurisdiction of a regulatory agency, it must follow the laws of that agency, whether it likes it or not. When we speak of an individual who is subject to the jurisdiction of a court, he must follow the judgments and orders of that court, whether he likes it or not . . . . Likewise, aliens cannot immunize themselves from U.S. law by entering our country in violation of Title 8. Indeed, illegal aliens are such because they are subject to U.S. law.21 II. THE STATE CITIZENSHIP PROPOSAL A. The proposed statute unconstitutionally redefines state citizenship in contradiction to both the plain language of the 14th Amendment and settled case law

The proposed state citizenship statute defines a person as a citizen of a state if: ―(1) the person is born in the United States and subject to the jurisdiction thereof and (2) the person is a resident of the state of [proposed state], as defined by [state code § xyz].‖ While the first part of the statute hews closely to the text of the 14th Amendment, in the second part the statute misstates the meaning of ―subject to the jurisdiction thereof‖ by inappropriately equating jurisdiction with sworn allegiance, as discussed above. Even though the proposed definition of state citizenship purports to limit itself only to ―the purposes of this statute,‖ the statute nevertheless violates the 14th Amendment. 1. The proposed statute attempts to revive the concept of primary state citizenship, which the 14th Amendment firmly rejects.

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The 14th Amendment clearly defines state citizenship, stating: ―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.‖22 The Citizenship Clause, therefore, establishes— under the Constitution—not only a complete definition of national citizenship but of state citizenship as well.23 On a more fundamental level, the Clause also firmly establishes the primacy of national citizenship, rejecting the suggestion in Dred Scott that state citizenship is primary.24 With this understanding, state citizenship is now—and has consistently been— determined by where a citizen of the United States chooses to reside. 25 By definition, it is not possible to be citizen of the United States without also being a citizen of the state in which one resides. The statute, with its more restrictive definition, contradicts the unmistakable language and purpose of the 14th Amendment and settled case law by uncoupling state citizenship from residency and national citizenship. While the proposed statute claims to draw its interpretation of citizenship from ―the meaning that it bears in Section 1 of the Fourteenth Amendment,‖ this interpretation is fatally flawed and factually inaccurate—and no jurisdiction within the United States has chosen to adopt it. Such a statute would create a situation in which a person born in the United States (i.e., a natural-born citizen of the United States) would be unable to become a citizen of the state where he or she resides. The proposed statute is, in effect, an attempt to revive the concept of primary state citizenship in contravention of the 14th Amendment. 2. States do not have the authority to amend the definition of state citizenship because it is a matter of Constitutional and federal law.

The Supreme Court has unequivocally said that states cannot define citizenship. In the seminal case, Saenz v. Roe, the Supreme Court held that California had violated the 14th Amendment by withholding certain state benefits to newly arrived residents, thus creating different categories of state citizenry. The Court held that these durational residency requirements impaired the fundamental right of U.S. citizens to travel interstate, noting that: ―Citizens of the United States . . . have the right to choose to be citizens ‗of the State wherein they reside.‘ The States, however, do not have any right to select their citizens.‖26 The proposed statute, however, goes much further than simply subdividing citizenship; it attempts to exclude an entire population of Constitutionally mandated American citizens. The separate identity of state citizenship does not, by itself, grant to states the authority to exclude citizens based on parentage—and certainly not in light of the 14th Amendment‘s plain language.27 B. Even if the states had constitutional authority to amend state citizenship, the proposed statute would nevertheless violate the 14th Amendment by denying U.S. citizens the privileges or immunities of U.S. citizenship.

Even if we assume that the states did have the ability to redefine their citizenry, the statute also violates the 14th Amendment because it impinges upon the Privileges or Immunities Clause, which states that ―No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .‖28 Today, this Clause is generally interpreted to apply to only those rights and abilities that are derived from the federal nature of

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national citizenship.29 The Slaughter-House Cases explicitly included one such privilege in this category: the privilege of a ―citizen of the United States [to] become a citizen of any State of the Union by a bonafide residence therein, with the same rights as other citizens of that state.‖30 Furthermore, the proposed statute is not saved from unconstitutionality by its assertion that state citizenship ―shall not confer upon the holder thereof any right, privilege, immunity, or benefit under law.‖ Not only does this section hold no real meaning (since many rights and abilities are tied to residency), but the statute remains unconstitutional since the right to become a citizen in the state wherein you reside is the very privilege lost if the statute were passed. III. PRACTICAL CONSEQUENCES AND COSTS

Beyond the fatal constitutional infirmities of the proposed legislation, its adoption would likely incur significant costs on the State of [ ]. Proponents of the statute have openly admitted that they intend to provoke lawsuits in order to get their interpretation of the 14th Amendment in front of the Supreme Court. For the reasons outlined above, it is a near certainty that in defending such lawsuits the state will lose.31 It is also a certainty that in the process of doing so, the state will have to spend millions of dollars mounting a legal defense during a period of severely limited state finances. In addition, the state attorney general will have to tie up scarce staff resources at a time when numerous other pressing state issues demand attention. Furthermore, in passing such a law the state will likely be exposing any state official who implements the new statute to personal liability. 42 U.S.C. Sec. 1983, originally known as the Ku Klux Klan Act of 1871, allows private individuals to recover compensatory damages (including for emotional distress) and even punitive damages from state officials for violating the individuals‘ constitutional rights.32 While state officials are personally liable for any damages, many states indemnify their officials, so the state itself may end up footing the bill. Moreover, because the constitutional right to citizenship by birth is clearly established, state officials can be held personally liable even if they were obeying a contradictory state law.33 IV. CONCLUSION

As evidenced by the discussion above, it is clear that the proposed statute is unconstitutional in light of the intent of the framers of the 14th Amendment, its plain language, and over a century of Supreme Court interpretations of its meaning. Moreover, the state may incur unintended and devastating legal costs and liabilities in passing such legislation.

5

See James C. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 367, 369 (2006).
1

2

Margaret Mikyung Lee, CONG. RESEARCH SERV., RL 33079, BIRTHRIGHT CITIZENSHIP UNDER THE 14TH AMENDMENT OF PERSONS BORN IN THE UNITED STATES TO ALIEN PARENTS 1 (2010) (citing BLACK‘S LAW DICTIONARY 775 (5th Ed. 1979)).
3

See Legislation Denying Citizenship at Birth to Certain Children Born in the United States, 19 Op. O.L.C. 340 (1995), 1995 OLC LEXIS 42, at *6; United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898).
4 5

See Scott v. Sandford, 60 U.S. 393 (1856); Ho, supra note 1, at 369.

James C. Ho, Birthright Citizenship, the Fourteenth Amendment, and the Texas Legislature, 12 TEX. REV. L. & POL. 161, 162 (2007). Special treatment is reserved for Native Americans. Wong Kim Ark addresses this directly, ―Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states, but were alien nations,‖ and thus not subject to the jurisdiction of the U.S. Wong Kim Ark, 169 U.S. at 681.
6

7 8 9

The Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27 (1866). CONG. GLOBE, 39TH CONG., 1ST SESS. 498 (1866). CONG. GLOBE, 39TH CONG., 1ST SESS. 2890 (1866) (emphasis added). Id. BLACK‘S LAW DICTIONARY 927 (9th ed. 2009) (emphasis added). Wong Kim Ark, 169 U.S. 649. Id. at 653.

10 11 12 13 14

Id. at 655. The common law treated children born to English parents living outside of England as being born ―out of the king‘s allegiance, and out of his majesty‘s realms and dominions,‖ id. at 461, and as a consequence such children had to gain English citizenship through naturalization. All children born within the king‘s territory, by contrast, were considered within his allegiance and thus citizens by birth, regardless of who their parents were, with the exceptions mentioned above of those born to diplomats or occupying soldiers. See id.
15

Id. at 474 (emphasis added). Although the Slaughter-House Cases and Elk v. Wilkins may be cited as representing a contrary view, the Court in Wong Kim Ark specifically disparaged the single statement from the Slaughter-House Cases on this issue and noted that the Elk v. Wilkins decision was limited to the situation of Native Americans. Id. at 678, 682; see generally The Slaughter-House Cases, 83 U.S. 36 (1872); Elk v. Wilkins, 112 U.S. 94 (1884).
16 17 18 19 20

Plyler v. Doe, 457 U.S. 202, 211 (1982). Id. at 212 n.10 (italics omitted). 471 U.S. 444, 446 (1985). 542 U.S. 507, 510 (2004). Ho, supra note 1, at 376.

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21 22 23

Id. at 368-369 (citations omitted). U.S. CONST. amend. XIV, §1 (emphasis added).

See The Slaughter-House Cases, 83 U.S. at 73; LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW, §7–2 (3d ed. 2000).
24

See The Slaughter-House Cases, 83 U.S. at 73; see also Arver v. United States (Selective Draft Law Cases), 245 U.S. 366, 389 (1918) (―[The Fourteenth Amendment caused] the citizenship of the United States to be paramount and dominant instead of being subordinate and derivative.‖); Hague v. Comm. for Indus. Org., 307 U.S. 496, 510 (1939) (―[From the 14th amendment onward] citizenship of the United States became primary and citizenship of a State secondary.‖). Saenz v. Roe, 526 U.S. 489, 506 (1999) (―The Citizenship Clause of the Fourteenth Amendment expressly equates [state] citizenship with residence.‖); The Slaughter-House Cases, 83 U.S. at 74 (―[a citizen of the United States] must reside within the State to make him a citizen of it.‖). Justice Harlan in his dissent from Afroyim v. Rusk notes that the Citizenship Clause was specifically intended to both to create ―a basis of federal citizenship which was indisputably independent of state citizenship, [and that would] preclude any effort by state legislatures to circumvent the Amendment by denying freedmen state citizenship.‖ 387 U.S. 253, 284 (1967) (Harlan, J., dissenting). Though it is in a dissent, Harlan‘s analysis is on point regarding the historical source of the 14th Amendment.
25 26 27

Saenz, 526 U.S. at 510-11 (emphasis added) (internal citations omitted).

See Madden v. Kentucky, 309 U.S. 83, 93 (1940) (noting that states possess the sovereignty to manage their own affairs except where the Constitution provides otherwise, referencing the states‘ power to tax state citizens).
28 29

U.S. CONST. amend. XIV, §1 (emphasis added).

See TRIBE, supra note 23, § 7–3 (describing how the Court in the Slaughter-House Cases severely limited the Privileges or Immunities Clause).
30

The Slaughter-House Cases, 83 U.S. at 79-80 (emphasis added). See also McDonald v. City of Chicago, 130 S. Ct. 3020, 3031 (2010) (declining to overhaul the understanding of the Privileges or Immunities Clause derived from The Slaughter-House Cases).
31

Legislative proposals repealing birthright citizenship have failed before in California and Texas as well as multiple times in the House of Representative. In the 111th Congress alone four bills have been introduced and none have progressed beyond introduction. See H.R. 126, 111th Cong. (2009); H.R. 994 § 301, 111th Cong. (2009); H.R. 1686, 111th Cong. (2009); H.R. 5002 § 7, 111th Cong. (2009). See Lee, supra note 2, at 9.
32

See Douglas Werner Huth and Frank J. Cavico, The Personal Liability of the Public Sector Administrator Pursuant to 42 U.S.C. Section 1983, http://www.huizenga.nova.edu/6240/Articles/Section1983LiabilityArticle.htm.
33

See F. Buddie Contracting v. Cuyahoga Cmty. Coll. Dist., 31 F. Supp. 2d 584, 589-90 (N.D. Ohio 1998).

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