Reclusive Libertarian

Essays

The Soil Does Not Own You

· 12 min read

There is a ghost in the majority opinion in Trump v. Barbara, and it wears a crown. The rule the Court reaches for, the one it calls the birthright of the freest citizenship on earth, is a feudal inheritance. It descends from Calvin’s Case, decided in England in 1608, which held that a person born within the king’s dominions owed him a natural and perpetual allegiance for the simple reason that he was born on the king’s soil. The bond was not chosen and could not be shed. It was, in the language of the day, a personal service owed to the lord of the ground, born with the child and ended only in the grave. England had subjects, bound to a place and its master, not citizens. The majority took that rule, the rule that the dirt you are born on owns you, and made it the charter of American membership. It got the history backwards and the philosophy backwards, and Justice Thomas, in dissent, said so.

President Trump’s order read the Citizenship Clause to withhold birthright citizenship from two groups: children born here to parents present illegally, and children born here to lawful temporary visitors, the birth-tourism trade chief among them. The Court held the order facially unconstitutional. On its reading, the words “subject to the jurisdiction thereof” mean only that a person is within reach of American law, so a woman who flies in on a tourist visa in her ninth month, delivers, and flies home has produced an American, because for the hours she stood on our soil she could have been arrested on it. Citizenship as a souvenir picked up at the airport.

This site begins from a plain idea, that a person owns himself, and that no authority over him is legitimate without his consent. A citizenship worthy of a free people has to rest on that same footing. It is a membership, a compact between a person and a political community in which each owes the other something real: the citizen his allegiance, the community its protection. Membership of that kind cannot be seized by trespass or manufactured by a layover. It is offered and it is accepted. What the majority calls birthright citizenship is not that. It is the older thing, the thing the compact was built to replace.

The rule the majority dug up

The English principle was a rule of feudal bondage. America was founded in open revolt against it. John Adams wrote that the feudal theory held the common people “in herds and clans, in a state of servile dependence on their lords.” The colonists, he said, formed their governments “in direct opposition” to it. In 1776 they dissolved all allegiance to the Crown, which is to say they declared that a man is not the perpetual property of the sovereign he was born under. And the same Reconstruction Congress that gave us the Fourteenth Amendment passed, in the very year it was ratified, an Expatriation Act announcing that the right to shed one allegiance and take up another is a natural and inherent right of all people. You cannot square a nation that wrote down the right to walk away from the king of your birth with a rule that hands the king of your birthplace a claim on your children. The majority has the amendment adopting, “with little fanfare,” the one doctrine the men who wrote it were repudiating in their other legislation.

What “subject to the jurisdiction” was doing

The majority’s reading is not absurd to a modern ear. “Jurisdiction” often does mean the reach of the law. Chief Justice Marshall, in Schooner Exchange, described it as the “full and complete power of a nation within its own territories.” A tourist obeys our traffic laws and can be tried in our courts, so in that thin sense he is under our jurisdiction, and so is the child born to him. And a few words after the Citizenship Clause, the same Fourteenth Amendment forbids a State to deny equal protection to any person “within its jurisdiction,” which plainly means everyone physically present. If the two phrases carry the same meaning, the majority wins.

They do not. The men who wrote them said so on the record, at length. Congress used “within its jurisdiction” when it meant mere territorial presence, and it used “subject to the jurisdiction” in the citizenship sentence instead. When a drafter chooses different words in the same section of the same amendment, the ordinary assumption is that he means different things. Here we do not have to assume, because the authors explained the difference in the plainest speech. Senator Howard, who introduced the clause, said “jurisdiction” here meant “full and complete jurisdiction,” “the same in extent and quality as applies to every citizen of the United States now.” Senator Trumbull, asked directly what the words meant, answered: “Not owing allegiance to anybody else. That is what it means.” Trumbull had considered writing the rule as “owing allegiance to the United States” and discarded that phrasing on purpose, because a visitor owes a partial allegiance while he is here, and Trumbull wanted the visitor’s child left out. This is not the language of men who were quietly enacting the feudal rule that everyone born on the soil belongs to the sovereign of the soil.

The courts of the era read it the same way, and immediately. Five years after ratification, in the Slaughter-House Cases, this Court said the phrase “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” In Elk v. Wilkins, in 1884, the Court held that the clause required a person to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to its political jurisdiction, and owing it direct and immediate allegiance.” Every justice in Elk, in the majority and in dissent, agreed the clause demanded complete political jurisdiction and not the bare fact of being reachable by a sheriff. The majority today sweeps these aside and adopts the single reading the founding generation of the amendment spent its breath denying.

The tell

If the majority’s reading were the original one, the government would have acted on it from the start. It did the reverse, at once and for decades, under administrations of both parties. Joseph Speck, born here to parents domiciled in Switzerland, was denied citizenship. Ludwig Hausding, born here to Saxon parents, the same. Richard Greisser, born in Ohio to a father domiciled in Germany. Freiderich de Bourry, born in New York to Austrians who returned to Europe. The child of Mary Deveraux, an Irish woman who gave birth the day after she arrived. Grant’s attorney general, and the state departments of Hayes, Cleveland, and Harrison, all read the clause to require a home here, not a moment here. Either every one of those officials defied a Constitution many of them had helped write and ratify, doing it openly and drawing no objection, or they knew something the majority pretends not to.

The majority’s escape from this record is a story. The domicile understanding, it says, was not the original meaning but a later revisionist campaign, a nativist project aimed at the children of Chinese immigrants. It is an ingenious story and it dissolves on contact with the facts, as Thomas shows. The evidence against the majority does not begin decades late. It begins in 1870, when the same Reconstruction Congress reenacted the citizenship rule using the words “not subject to any foreign power,” language that plainly excluded the children of foreigners domiciled abroad. And the people actually turned away were not Chinese. They were Swiss and German and Austrian and Irish. A campaign of anti-Chinese animus that works by denying citizenship to Austrian babies while leaving Chinese families settled here untouched is a theory hunting for a villain. Worse for the majority, a genuine anti-Chinese effort would have demanded a rule of parentage, that your parents already be citizens, because the Chinese it feared were domiciled here. When the government did finally move against the Chinese, in Wong Kim Ark itself, it argued against the domicile rule. The majority’s own supposed villain was on the majority’s side of the line.

The case that will not bear the weight

Which brings us to Wong Kim Ark, the decision the majority leans on hardest. Wong was born in San Francisco to parents who had built a permanent, lawful home in California. The Court held he was a citizen, and it was right to. But it held that about a domiciliary, and it said so almost compulsively: seven separate times in its opening paragraph it stressed that Wong and his parents were domiciled and resident here, and it repeated the point in the middle of the opinion and again at the end, framing its final rule as reaching “all other persons, of whatever race or color, domiciled within the United States.” A judgment about a man with a permanent home in California is not authority for a rule about a woman who was here for a weekend. The majority mistakes the opinion’s wandering dicta, which reformulated the rule several times and contradicted itself as it went, for the narrow thing the Court actually held. The holding is the one Thomas would apply: the child of a domiciliary is a citizen, the child of a sojourner is not.

Blood and soil, and the answer to it

The result I am defending will be cheered by people I want nothing to do with, and attacked as though it were their project. The nativist hears “the child of a foreigner is not automatically a citizen” and reaches for blood: citizenship should track ancestry, the nation is a bloodline. That is a different argument, and the history refutes it as flatly as it refutes the majority. The rule Thomas defends is domicile, and domicile is the most colorblind test in all of citizenship law. It asks one question. Is this your home. Have you cast your lot here, is your allegiance here and nowhere else. It does not ask who your grandfather was. It is the melting pot stated as a legal rule: not where you came from, but whether you have joined.

Remember what actually happened in Dred Scott. The Court there denied Scott his citizenship by a rule of blood, holding that a black man belonged to a subordinate caste and could never be a member no matter how deep his ties to the country. Scott’s own lawyers argued the rule that would have won: that citizenship follows domicile, and Scott was domiciled in Missouri, so Scott was a citizen. Domicile was the anti-caste principle. It was the rule that freed Scott, and the Fourteenth Amendment wrote it into the Constitution to bury the blood theory for good. The quiet tragedy of the majority opinion is that it believes it is honoring that project while it trades the colorblind principle at its heart for an accident of geography.

The strong form of this argument has no need of the weak one. Domicile is residence joined to the intent to remain, and by that test the hardest cases do not come out the way the loudest supporters of the order want them to. A family that has lived here without papers for fifteen years, that has no other home and means to keep none, may well be domiciled here, and their child may well be a citizen under the very rule Thomas is defending. Justice Gorsuch says as much, and Thomas expressly reserves the question. The domicile rule cleanly excludes the birth-tourism industry and the true transient, the person whose home is elsewhere and who arranged to be here only long enough to deliver. The settled immigrant family is another matter. That is a narrower holding than the headlines will report, and it is the honest one. The order is not facially unconstitutional, which is all Thomas needs to establish, because at least some of the people it reaches, the tourists and the true transient, were never citizens under the original meaning at all.

There is a real cost on the other side. A rule applied loosely for more than a century settles expectations, and a great many Americans hold their citizenship through the broad reading. That is a strong argument for Congress to legislate with care and for courts to work at the edges rather than the center. Reliance can tell you how gently to change a rule. The original meaning is a different question.

The majority wrote a moving opinion. It calls on Douglass and on the elder Harlan and on the dignity and glory of American citizenship, and it plainly believes it is standing where they stood. But Frederick Douglass asked for citizenship “not as aliens nor as exiles,” but as Americans, men whose home was here and whose allegiance was owed here and nowhere else. That is the domicile principle in his own mouth. The majority has taken the amendment that made membership a matter of allegiance and consent and read it to make membership a matter of where a mother happened to be standing when her water broke. It has mistaken the reach of our law for the bond of our citizenship. And to do it, the Court had to revive the one idea the Fourteenth Amendment, and the Revolution before it, existed to kill: that a man belongs to the ground he was born on, and whoever holds that ground holds him.

He does not. The soil does not own you. It never did. That was the entire point of 1776, and Justice Thomas is the member of this Court who still remembers it.

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