From Feudalism to Consent: Rethinking Birthright Citizenship

The Heritage Foundation ^ | March 30, 2006 | John C. Eastman, Ph.D

[ncdave4life]

www.heritage.org

From Feudalism to Consent: Rethinking Birthright Citizenship

by John C. Eastman, Ph.D
March 30, 2006
Legal Memorandum #18

It is today routinely believed that under the Citi­zenship Clause of the Fourteenth Amendment, mere birth on U.S. soil is sufficient to obtain U.S. citizen­ship. However strong this commonly believed inter­pretation might appear, it is incompatible not only with the text of the Citizenship Clause (particularly as informed by the debate surrounding its adoption), but also with the political theory of the American Founding.

It is time for Congress to reassert its plenary authority and make clear, by resolution, its view that the “subject to the jurisdiction” phrase of the Citizen­ship Clause has meaning of fundamental importance to the naturalization policy of the nation.

The Original Understanding of the Citizenship Clause

The Citizenship Clause of the Fourteenth Amend­ment provides that “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.”[1] As manifest by the con­junctive “and,” the clause mandates citizenship to those who meet both of the constitutional prerequi­sites: (1) birth (or naturalization) in the United States and (2) being subject to the jurisdiction of the United States.

The widely held, though erroneous, view today is that any person entering the territory of the United States—even for a short visit; even illegally—is considered to have subjected himself to the juris­diction of the United States, which is to say, sub­jected himself to the laws of the United States. Surely one who is actually born in the United States is therefore “subject to the jurisdiction” of the United States and entitled to full citizenship as a result, or so the common reasoning goes.

Textually, such an interpretation is manifestly erroneous, for it renders the entire “subject to the jurisdiction” clause redundant. Anyone who is “born” in the United States is, under this interpre­tation, necessarily “subject to the jurisdiction” of the United States. Yet it is a well-established doc­trine of legal interpretation that legal texts, includ­ing the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.[2]

The “subject to the jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: “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.”[3] As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s par­ents, remained a citizen or subject of the parents’ home country was not entitled to claim the birth­right citizenship provided by the 1866 Act.

The jurisdiction clause of the Fourteenth Amendment is somewhat different from the juris­diction clause of the 1866 Act, of course. The pos­itively phrased “subject to the jurisdiction” of the United States might easily have been intended to describe a broader grant of citizenship than the negatively phrased language from the 1866 Act, one more in line with the modern understanding. But the relatively sparse debate we have regarding this provision of the Fourteenth Amendment does not support such a reading.

When pressed about whether Indians living on reservations would be covered by the clause since they were “most clearly subject to our jurisdiction, both civil and military,” for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that “subject to the jurisdiction” of the United States meant subject to its “complete” juris­diction, “[n]ot owing allegiance to anybody else.”[4] And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now”[5] (i.e., under the 1866 Act). That meant that the children of Indians who still “belong[ed] to a tribal relation” and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin explicitly to exclude “Indians not taxed,” as the 1866 Act had done, was rejected as redundant.[6]

The interpretative gloss offered by Senators Trumbull and Howard was also accepted by the Supreme Court—by both the majority and the dis­senting justices—in The Slaughter-House Cases.[7] The majority in that case correctly noted that the “main purpose” of the clause “was to establish the citizenship of the negro” and that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”[8] Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Brad­ley in dissent from the principal holding of the case, likewise acknowledged that the clause was designed to remove any doubts about the constitu­tionality of the 1866 Civil Rights Act, which pro­vided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power.[9]

Although the statement by the majority in Slaughter-House was dicta, the position regarding the “subject to the jurisdiction” language advanced there was subsequently adopted as holding by the Supreme Court in Elk v. Wilkins.[10] John Elk was born on an Indian reservation and subsequently moved to non-reservation U.S. territory, renounced his former tribal allegiance, and claimed U.S. citizenship by virtue of the Citizen­ship Clause. This Court held that the claimant was not “subject to the jurisdiction” of the United States at birth, which required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”[11] Elk did not meet the jurisdictional test because, as a mem­ber of an Indian tribe at his birth, he “owed imme­diate allegiance to” his tribe and not to the United States. Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,” “they were alien nations, distinct political communities,” accord­ing to the Court.[12]

Drawing explicitly on the language of the 1866 Civil Rights Act, the Court continued:

Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.[13]

Indeed, if anything, American Indians, as mem­bers of tribes that were themselves dependent upon the United States (and hence themselves subject to its jurisdiction), had a stronger claim to citizenship under the Fourteenth Amendment merely by virtue of their birth within the territorial jurisdiction of the United States than did children of foreign nationals. But the Court in Elk rejected even that claim and in the process necessarily rejected the claim that the phrase, “subject to the jurisdiction” of the United States, meant merely territorial jurisdiction as opposed to complete, political jurisdiction.

Such was the interpretation of the Citizenship Clause initially given by the Supreme Court, and it was the correct interpretation. As Thomas Cooley noted in his treatise, “subject to the jurisdiction” of the United States “meant full and complete jurisdic­tion to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”[14]

The Supreme Court’s Wrong Turn in Wong Kim Ark

Despite the clear holding of Elk and the persua­sive dicta from Slaughter-House that mere birth on U.S. soil is not sufficient to meet the constitutional prerequisites for birthright citizenship, the Supreme Court held otherwise in United States v. Wong Kim Ark,[15] with expansive language even more broad than the holding of the case itself. It is that erroneous interpretation of the Citizenship Clause, adopted 30 years after the adoption of the Fourteenth Amendment, that has colored basic questions of citizenship ever since.

In Wong Kim Ark, Justice Horace Gray, writing for the Court, held that “a child born in the United States, of parents of Chinese descent, who at the time of his birth were subjects of the emperor of China, but have a permanent domicile and resi­dence in the United States,” was, merely by virtue of his birth in the United States, a citizen of the United States as a result of the Citizenship Clause of the Fourteenth Amendment.[16] Justice Gray cor­rectly noted that the language to the contrary in The Slaughter-House Cases was merely dicta and therefore not binding precedent.[17] He found the Slaughter-House dicta unpersuasive because of a subsequent decision, in which the author of the majority opinion in Slaughter-House had con­curred, holding that foreign consuls (unlike ambassadors) were “subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside.”[18]

Justice Gray appears not to have appreciated the distinction between partial, territorial jurisdiction, which subjects all who are present within the terri­tory of a sovereign to the jurisdiction of that sover­eign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.

More troubling than his rejection of the persua­sive dicta from Slaughter-House, though, was the fact that Justice Gray also repudiated the actual holding in Elk, which he himself had authored. After quoting extensively from the opinion in Elk, including the portion, reprinted above, noting that the children of Indians owing allegiance to an Indian tribe were no more “subject to the jurisdic­tion” of the United States within the meaning of the Fourteenth Amendment than were the chil­dren of ambassadors and other public ministers of foreign nations born in the United States, Justice Gray simply held, without any analysis, that Elk “concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African, or Mongolian descent, not in the diplomatic service of a foreign country.”[19]

By limiting the “subject to the jurisdiction” clause to the children of diplomats, who neither owed alle­giance to the United States nor were (at least at the ambassadorial level) subject to its laws merely by virtue of their residence in the United States as the result of the long-established international law fic­tion of extraterritoriality by which the sovereignty of a diplomat is said to follow him wherever he goes, Justice Gray simply failed to appreciate what he seemed to have understood in Elk, namely, that there is a difference between territorial jurisdiction, on the one hand, and the more complete, alle­giance-obliging jurisdiction that the Fourteenth Amendment codified, on the other.

Justice Gray’s failure even to address, much less appreciate, the distinction was taken to task by Justice Fuller, joined by Justice Harlan, in dissent. Drawing on an impressive array of legal scholars, from Vattel to Blackstone, Justice Fuller correctly noted that there was a distinction between the two sorts of allegiance—“the one, natural and perpet­ual; the other, local and temporary.”[20] The Citizen­ship Clause of the Fourteenth Amendment referred only to the former, he contended. He noted that the absolute birthright citizenship urged by Justice Gray was really a lingering vestige of a feudalism that the Americans had rejected, implicitly at the time of the Revolution and explic­itly with the 1866 Civil Rights Act and the Four­teenth Amendment.[21]

Quite apart from the fact that Justice Fuller’s dis­sent was logically compelled by the text and his­tory of the Citizenship Clause, Justice Gray’s broad interpretation led him to make some astoundingly incorrect assertions. He claimed, for example, that “a stranger born, for so long as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason.”[22] And he was compelled to recognize dual citizenship as a neces­sary implication of his position,[23] despite the fact that ever since the Naturalization Act of 1795, “applicants for naturalization were required to take, not simply an oath to support the constitu­tion of the United States, but of absolute renuncia­tion and abjuration of all allegiance and fidelity to every foreign prince or state, and particularly to the prince or state of which they were before the citizens or subjects.”[24]

Finally, Justice Gray’s position is incompatible with the notion of consent that underlay the sover­eign’s power over naturalization. What it meant, fundamentally, was that foreign nationals could secure American citizenship for their children merely by giving birth on American soil, whether or not their arrival on America’s shores was legal or illegal, temporary or permanent.

Justice Gray stated that the children of only two classes of foreigner nationals were not entitled to the birthright citizenship he thought guaranteed by the Fourteenth Amendment.

First, as noted above, were the children of ambassadors and other foreign diplomats who, as the result of the fiction of extraterritoriality, were not even considered subject to the territorial juris­diction of the United States.

Second were the children of members of invad­ing armies who were born on U.S. soil while it was occupied by the foreign army. But apart from these two narrow exceptions, all children of foreign nationals who managed to be born on U.S. soil were, in Justice Gray’s formulation, citizens of the United States. Children born of parents who had been offered permanent residence but were not yet citizens, and who as a result had not yet renounced their allegiance to their prior sovereign, would become citizens by birth on U.S. soil. This was true even if, as was the case in Wong Kim Ark itself, the parents were, by treaty, unable ever to become citizens.

Children of parents residing only temporarily in the United States on a student or work visa would also become U.S. citizens. Children of parents who had overstayed their temporary visas would like­wise become U.S. citizens, even though born of parents who were now in the United States ille­gally. And, perhaps most troubling from the “con­sent” rationale, even children of parents who never were in the United States legally would become citizens as the direct result of the illegal action by their parents. This would be true even if the par­ents were nationals of a regime at war with the United States and even if the parents were here to commit acts of sabotage against the United States, at least as long as the sabotage did not actually involve occupying a portion of the territory of the United States. The notion that the framers of the Fourteenth Amendment, when seeking to guaran­tee the right of citizenship to former slaves, also sought to guarantee citizenship to the children of enemies of the United States who were in its terri­tory illegally is simply too absurd to be a credible interpretation of the Citizenship Clause.

Although hard to sustain under the broad lan­guage used by Justice Gray, the actual holding of Wong Kim Ark is actually much more narrow, and the case need not be read so expansively as to pro­duce such absurd results. Because of the Chinese Exclusion Acts,[25] Wong Kim Ark’s parents were ineligible for citizenship even if they had renounced their Chinese citizenship and subjected themselves to the exclusive jurisdiction of the United States. As such, Wong Kim Ark arguably would have been entitled to citizenship because, like his parents, he would in fact have been “sub­ject to the jurisdiction” of the United States in the complete, allegiance-obliging sense intended by the phrase.[26]

This is not to say that Congress could not, pur­suant to its naturalization power, choose to grant citizenship to the children of foreign nationals.[27] But thus far it has not done so. Instead, the lan­guage of the current naturalization statute simply tracks the minimum constitutional guarantee— anyone “born in the United States, and subject to the jurisdiction thereof,” is a citizen.[28] Indeed, Congress has by its own actions with respect to Native Americans—both before and after this Court’s decision in Wong Kim Ark—rejected the claim that the Citizenship Clause itself confers citi­zenship merely by accident of birth.[29] None of these citizenship acts would have been neces­sary—indeed, all would have been redundant— under the expansive view of the Citizenship Clause propounded by Justice Gray.

A Citizenship of Consent, not Feudal Allegiance

Once one considers the full import of Justice Gray’s language in Wong Kim Ark, it becomes clear that his proposition is simply incompatible not only with the text of the Citizenship Clause, but with the political theory of the American Found­ing as well.

At its core, as articulated by Thomas Jefferson in the Declaration of Independence, that political theory posits the following: Governments are insti­tuted among particular peoples, comprised of nat­urally equal human beings, to secure for themselves certain unalienable rights. Such gov­ernments, in order to be legitimate, must be grounded in the consent of the governed—a nec­essary corollary to the self-evident proposition of equality.[30] This consent must be present, either explicitly or tacitly, not just in the formation of the government, but also in the ongoing decision whether to embrace others within the social com­pact of the particular people. As formulated in the Massachusetts Bill of Rights of 1780:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights…. The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.[31]

Thus, as Professor Edward Erler has noted:

[T]he social contract requires reciprocal consent. Not only must the individual consent to be governed, but he must also be accepted by the community as a whole. If all persons born within the geographical limits of the United States are to be counted citizens—even those whose parents are in the United States illegally— then this would be tantamount to the conferral of citizenship without the consent of “the whole people.”[32]

In other words, birthright citizenship is contrary to the principle of consent that is one of the bed­rock principles of the American regime.

Such a claim of birthright citizenship traces its roots not to the republicanism of the American Founding, grounded as it was in the consent of the governed, but to the feudalism of medieval England, grounded in the notion that a subject owed perpetual allegiance and fealty to his sover­eign.[33] A necessary corollary of the feudal notion of citizenship was the ban on expatriation, embraced by England and described by Blackstone as follows:

Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection…. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, canceled, or altered, by any change of time, place, or circumstance…. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other, and cannot be divested without the concurrence act of that prince to whom it was first due.[34]

Thus, when Congress passed as a companion to the Fourteenth Amendment the Expatriation Act of 1868, which provided simply that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happi­ness,” it necessarily rejected the feudal birthright citizenship doctrine of medieval England as fun­damentally incompatible with the principles of the Declaration of Independence. As Representa­tive Woodward of Pennsylvania noted on the floor of the House of Representatives: “It is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it.”[35]

Such remnants of feudalism were rejected by our nation’s Founders when they declared to a candid world that they no longer owed allegiance to the king of their birth. They were rejected again by the Congress in 1866 and by the nation when it ratified the Fourteenth Amendment.

Reviving Congress’s Constitutional Power Over Naturalization

It is time for the courts, and for the political branches as well, to revisit Justice Gray’s erroneous interpretation of the Citizenship Clause, restoring to the constitutional mandate what its drafters actually intended: that only a complete jurisdic­tion, of the kind that brings with it a total and exclusive allegiance, is sufficient to qualify for the grant of citizenship to which the people of the United States actually consented.

Of course, Congress has in analogous contexts been hesitant to exercise its own constitutional authority to interpret the Constitution in ways contrary to the pronouncements of the courts. Even if that course is warranted in most situations so as to avoid a constitutional conflict with a co-equal branch of the government, it is not war­ranted here for at least two reasons.

First, as the Supreme Court itself has repeat­edly acknowledged, Congress’s power over natu­ralization is “plenary,” while “judicial power over immigration and naturalization is extremely lim­ited.”[36] While that recognition of plenary power does not permit Congress to dip below the con­stitutional floor, it does counsel against any judi­cial interpretation that provides a broader grant of citizenship than is actually supported by the Constitution’s text.

Second, the gloss that has been placed on the Wong Kim Ark decision is actually much broader than the actual holding of the case. Congress should therefore adopt a narrow reading of the decision that does not intrude on the plenary power of Congress in this area any more than the actual holding of the case requires. Wong Kim Ark’s parents were actually in this country both legally and permanently, yet were barred from even pursuing citizenship (and renouncing their former allegiance) by a treaty that closed that door to all Chinese immigrants. They were therefore as fully subject to the jurisdiction of the United States as they were legally permitted to be, and under those circumstances, it is not a surprise that the Court would extend the Constitution’s grant of birthright citizenship to their children. But the effort to read Wong Kim Ark more broadly than that, as interpreting the Citizenship Clause to con­fer birthright citizenship on the children of those not subject to the full and sovereign (as opposed to territorial) jurisdiction of the United States, not only ignores the text, history, and theory of the Citizenship Clause, but also permits the Court to intrude upon a plenary power assigned to Con­gress itself.

—John C. Eastman, Ph.D., is Professor of Law at Chapman University School of Law and Director of The Claremont Institute Center for Constitutional Jurisprudence. This memorandum stems from an amicus brief filed by the Center for Constitutional Jurisprudence in support of respondents in Hamdi v. Rumsfeld.

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[1]U.S. Const. Amend. XIV, § 1.

[2]See, e.g., Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 562 (1995) (“this Court will avoid a reading which renders some words altogether redundant”); see also Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case. W. Res. L. Rev. 179 (1989).

[3]14 Stat. 27, ch. 31 (April 9, 1866).

[4]Congressional Globe, 39th Cong., 1st Sess., 2893 (May 30, 1866).

[5]Id., at 2890.

[6]Id., at 2892–97; see also Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Pol­ity 72–89 (1985).

[7]The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872).

[8]Id., at 73 (emphasis added).

[9]Id., at 92–93 (Field, J., dissenting).

[10]Elk v. Wilkins, 112 U.S. 94 (1884).

[11]Id., at 102.

[12]Id., at 99.

[13]Id., at 102.

[14]Thomas Cooley, The General Principles of Constitutional Law in America 243 (2001) (1880).

[15]United States v. Wong Kim Ark, 169 U.S. 649 (1898).

[16]169 U.S., at 653.

[17]Id., at 678.

[18]Id., at 679 (citing, e.g., In re Baiz, 135 U.S. 403, 424 (1890)).

[19]Id., at 681–82.

[20]Id.,at 710.

[21]Id., at 707; see also Edward J. Erler, “Immigration and Citizenship: Illegal Immigrants, Social Justice and the Welfare State,” in Gerald Frost, ed., Loyalty Misplaced: Misdirected Virtue and Social Disintegration 71, 81 (1997).

[22]Id., at 693.

[23]id., at 691.

[24]Id., at 711 (Fuller, J., dissenting) (citing Act of Jan. 29, 1795, 1 Stat. 414, c. 20).

[25]E.g., 22 Stat. 58 (1882).

[26]Cf. In re Look Tin Sing, 21 F. 905, 907 (C.C. Cal. 1884) (Field, Circuit Justice) (concluding that the American-born son of Chinese immigrants, who had taken up permanent residence in the United States pursuant to a treaty with China that rec­ognized the right of man to change his home and allegiance as “inherent and inalienable,” because he, like his parents, was at the time of his birth subject to the “exclusive” jurisdiction of the United States).

[27]See U.S. Const. Art. I, § 8, cl. 4 (“The Congress shall have power…To establish a uniform Rule of Naturalization”).

[28]8 U.S.C. § 1401(a).

[29]See Act of July 15, 1870, 16 Stat. 361, ch. 296, § 10 (cited in Elk, 112 U.S., at 104) (extending the jurisdiction of the United States to any member of the Winnebago Tribe who desired to become a citizen); Act of March 3, 1873, 17 Stat. 632, ch. 332, § 3 (cited in Elk, 112 U.S., at 104) (same offer of citizenship to members of the Miami tribe of Kansas); Indian Citizenship Act of 1924, 43 Stat. 253, 8 U.S.C. § 1401(b) (granting citizenship to Indians born within the territorial limits of the United States).

[30]Decl. of Ind. ¶ 2.

[31]Mass. Const. of 1780, Preamble (emphasis added).

[32]Erler, Immigration and Citizenship,at 77; see also Thomas G. West, Vindicating the Founders, at 166–67.

[33]See id., at 81.

[34]William Blackstone, 1 Commentaries on the Laws of England 357–58 (1979) (1765).

[35]Congressional Globe, 40th Cong., 2nd Sess., at 868 (1868); see also id., at 967 (Rep. Baily) (describing birthright citizenship as “the slavish feudal doctrine of perpetual allegiance”); Wong Kim Ark, 169 U.S., at 707 (Fuller, J., dissenting) (describing the rule adopted by the majority as “the outcome of the connection in feudalism between the individual and the soil on which he lived, and the allegiance due was that of liege men to their liege lord”).

[36]See, e.g., Miller v. Albright, 523 U.S. 420, 455 (1998); Fiallo v. Bell, 430 U.S. 787, 792 (1977); Kleindienst v. Mandel, 408 U.S. 753, 769–770 (1972); Galvan v. Press, 347 U.S. 522, 531 (1954).

 

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[ncdave4life]

This is interesting. I don't think that Prof. Eastman's
conclusion is rediculous. But I do think it is incorrect.
Here's why.

Professor Eastman begins with a key error:

    "Textually, [the usual] interpretation is manifestly
    erroneous, for it renders the entire subject to the
    jurisdiction clause redundant. Anyone who is born in
    the United States is, under this interpretation,
    necessarily subject to the jurisdiction of the United
    States."

That simply isn't so. Foreign embassies and consulates
within the United States are bits of territory in which we
have ceded jurisdiction to another country, and foreign
diplomats who have diplomatic immunity are, by definition,
not subject to U.S. jurisdiction, even while in U.S.
territory. So the "subject to the jurisdiction" clause
is not redundant at all. It simply excludes the children
of foreign diplomatic workers, and anyone else born in a
foreign embassy or similar, from having the right to claim
American citizenship.

From that erroneous premise, Prof. Eastman reasons that
the "subject to the jurisdiction" clause MUST mean something
non-obvious.

First he states a true principle:

    "Yet it is a well-established doctrine of legal
    interpretation that legal texts, including the
    Constitution, are not to be interpreted to create
    redundancy unless any other interpretation would
    lead to absurd results."

That is simply a common-sense rule-of-thumb for interpreting
the intent of an ambiguous law. It is a generally reliable
rule, but it does not apply in this case, because there is
no redundancy.

(Aside: However, this rule-of-thumb does serve to illustrate
what is wrong with 20th century courts' "incorporation" of
various portions of the Bill of Rights as applying to the
States, supposedly by the agency of the 14th Amendment. If
such incorporation had been intended, then the "due process"
clause of the 14th Amendment would have been entirely
redundant, since it exactly duplicates the wording of the
"due process" clause in the 5th Amendment. By this
rule-of-thumb, we must assume that no such redundancy was
intended, and, hence, that 14th Amendment incorporation was
not intended, either.)

Then he wades into the swamp:

    "The 'subject to the jurisdiction' provision must
    therefore require something in addition..."

That conclusion is wrong because his premise was wrong.

Since most aliens (whether legal or illegal) and their
children are fully subject to U.S. jurisdiction while in
the USA, the plain meaning of the text supports the
usual interpretation.

To his credit, Prof. Eastman acknowledges that the wording
does seem to support the usual interpretation (which he
calls "the modern understanding"):

    "The positively phrased subject to the jurisdiction of
    the United States might easily have been intended to
    describe a broader grant of citizenship than the
    negatively phrased language from the 1866 Act, one more
    in line with the modern understanding."

Professor Eastman cites the words of two Senators who
were influential backers 14th Amendment, as providing
"interpretative gloss" which supports his view that the word
"jurisdiction" actually was intended to mean "exclusive
jurisdiction." But he also admits that the legislative
history is "relatively sparse" regarding this issue.

That, of course, means that there was little confusion or
controversy about it, when the 14th Amendment was being
debated and ratified. And therein lies the second major
flaw in Professor Eastman's argument. Constitutional
amendments do not primarily gain legitimacy and force of law
through the actions or interpretations of Congress, but,
rather, through ratification by the States. Congress only
proposes Constitutional amendments. It is the States which
make them law.

The States ratified the 14th Amendment as written, not
as modified by "interpretative gloss" that most State
legislators and citizens probably had never heard of, which
significantly changes the meaning from the obvious one to
something significantly different. Unless Prof. Eastman
has evidence that his interpretation was widely known and
accepted in most or all of the States which ratified the
14th Amendment, an honest, originalist interpretation of
the provision must rely on the plain meaning of the text as
written.

Since he called the record of debate "sparse," it does not
sound to me as if he has such evidence. But if he were to
present such evidence, then I would reconsider my conclusion.

-Dave

[Paleo Conservative]

Surely one who is actually born in the United States is therefore “subject to the jurisdiction” of the United States and entitled to full citizenship as a result, or so the common reasoning goes.

Textually, such an interpretation is manifestly erroneous, for it renders the entire “subject to the jurisdiction” clause redundant. Anyone who is “born” in the United States is, under this interpre­tation, necessarily “subject to the jurisdiction” of the United States. Yet it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.

I came to this same conclusion quite some time ago just by reading the plain text of the fourteenth amendment to the constitution, and I'm no legal scholar.

[Racehorse]

Placeholder ping

Thanks for posting

R.

[John Valentine]

But if he were to present such evidence, then I would reconsider my conclusion.

He did. You should.

[John Valentine]

...and I'm no legal scholar.

Apparently, neither is Dave.

[familyop]

Your rebuttal was very logically considered and well written. ...good job! I suspect that you have studied logic thoroughly.

[old republic]

I would suppose that the clearest interpretation of the Citizenship clause could be gleaned by finding out who was granted citizenship in the time immediately following the ratification of the 14th amendment. On the surface it seems to me that the 14th amendment did not intend to grant blanket citizenship based on the sole criteria of being born within the territorial limits of the United States, because Indians were excluded from citizenship even though they were born in the US. It wasn't until Congress specifically granted them Citizenship in 1924 via the Indian Citizenship Act that this changed. Any information on the naturalization practices or groups who were allowed to be naturalized would be enlightening on this area of to the subject so if anyone knows anything about this, I would be interested to hear it.

[CowboyJay]

"“the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happi­ness,”"

Absolutely central to the current immigration debate. We the People are being deprived of an inalienable right to decide who comes and goes upon our sovereign soil by both the illegal aliens, and their governmental agents in the Senate.

Arguably, an illegal alien has never willfully placed themselves under the jurisdiction of the USA, nor have we voluntarily taken them into our jurisdiction, and therefore their offspring are not entitled to citizenship under the 14th.

To: HiJinx, Jim Robinson Possible civil rights suit to enforce our borders?

[shekkian]

Ping

[stopem]

Civil Rights suit to enforce our borders? I am on board with this one!

"As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s par­ents, remained a citizen or subject of the parents’ home country was not entitled to claim the birth­right citizenship provided by the 1866 Act."

Anchor baby is against the 14th amendment.

So those born to illegal invaders ahould have their citizenship revoked!!

[HiJinx]

Anchor Baby Essay Ping!

[Carry_Okie]

From what I've read and written, the phrase "subject to the jurisdiction thereof" was deliberately ambiguous, with its authors concealing an intent having little to do with natural persons at all.

From another post on a related topic:

Two railroad lawyers then in Congress, Roscoe Conkling and John A. Bingham, had taken the trouble to omit the word “natural” from the usual legal term “natural persons.” Both of them later admitted that their purpose in the omission was to confer the rights of citizenship to corporations (this link is to a book chapter that contains a fascinating history, the source of these few paragraphs). The railroads managed to get that interpretation out of the Supreme Court via the COURT CLERK, John Chandler Bancroft Davis (a railroad lawyer, former Assistant Secretary of State, a socialist, and quite possibly a Marxist). When he published the ruling in the case, County of Santa Clara (California) v. the Southern Pacific Railroad (118 U.S. 394 (1886)), Mr. Davis inserted his own headnotes (supposedly) quoting Chief Justice Waite prior to issuing his ruling. The note states that the Court was of the unanimous opinion that corporate persons were equivalent to Fourteenth Amendment citizens. That headnote wasn’t a ruling and therefore carried no force of law, nor is there any other record of whether a Court majority (that included several former railroad lawyers) supported such a conclusion. Chief Justice Waite was so sickly that it was unlikely he would have even known of the publication. Worse, there is evidence on the historical record of Mr. Davis having distorted for political effect his reports of a Marxist confab in Europe. In other words, Mr. Davis was not a reliable reporter of fact.

Legitimate or not, the dam had broken. Attorneys began citing Santa Clara v. Southern Pacific as if it was established precedent. Of the 307 subsequent Fourteenth Amendment cases brought before the Supreme Court, only 19 were about equal rights for human beings, while 288 were suits brought by corporations seeking the rights of natural persons. “Equal protection” had become available only for those who could afford it: corporations who had become, for the first time, “citizens” under the Fourteenth Amendment.

[Carry_Okie]

BTW, if you haven't read the dissent in Bridges v. Wixon, you should.

Here is an excerpt from an article upon which I've been musing upon occasion.

If I drive in a foreign country using my passport and California Driver License as qualification, I am still required to follow the rules of the road in that nation. That’s because I am WITHIN its jurisdiction. However, if I was arrested for a violation, the fact that I possess identification as an American citizen means that I (supposedly) enjoy certain protections as a citizen of the US, not a SUBJECT of that country. The American consulate would be notified and an officer would seek to act upon my behalf.

Further, the very idea that the citizenship of a baby born in the US of foreign parents should make a difference in its willingness to abide by American law is plainly silly. Babies don’t particularly care about local allegiance or show any interest in violating any laws (mom, food, and a dirty diaper are higher priorities). Meanwhile the parents remain foreigners! Are these legal geniuses on the Supreme Court suggesting they hold the kid hostage as an American citizen to ensure their parents’ good behavior? It’s absurd.

Let’s take a moment to examine just who these concurring legal geniuses on the Court (in US v. Wong Kim Ark) really were:

We have Rufus Peckham, infamous inventor of the now-discredited term, "substantive due process," used to invalidate a state statute regulating the hours of bakery employees.

We have George Shiras, a prominent (drum roll please) railroad lawyer with no prior judicial experience and friend to corporate railroad barons with a rather keen interest in retaining Chinese coolies. Kinda reminds you of something rather more contemporary, doesn't it?

We have Horace Gray, author of the majority opinion, a buddy of Brandeis, Holmes, and other noted court activists and a big fan of paper money.

We have Yalie David Brewer, founder of the American Society of International Law, peace advocate, and judicial activist toward using the court to supersede State laws.

We have Yalie Henry Brown, , author of Plessy v. Ferguson!!!, and a huge fan of the use of Admiralty Law as a regulatory means (even though he hired a substitute to serve in the military for him in the Civil War).

Lovely bunch.  By contrast, the dissenting opinion was written by:

Chief Justice Melville Fuller, a big fan of Thomas Cooley’s Treatise on Constitutional Limitations and property rights, but by no means a corporate shill.

The other dissenter was John Marshall Harlan, who had the temerity to oppose broad interpretation of the Commerce Clause and opposed Plessy v. Ferguson.

Justice McKenna did not participate as he was newly confirmed.

Justice Fuller’s opinion is extensive, so I’ve excerpted its most pertinent points.

If the conclusion of the majority opinion is correct (that children become natural law citizens of whatever country in which they happen to be born -CO), then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect. And children who are aliens by descent, but born on our soil, are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court,-an exemption apparently disregarded by the acts in respect of the exclusion of persons of Chinese descent.

It is an admirably clear construction, complete with an astute prediction of the modern consequences of the majority ruling. Chief Justice Fuller goes on with this elegant argument equating automatic birthright citizenship with feudalism:

The English common-law rule, which it is insisted was in force after the Declaration of Independence, was that 'every person born within the dominions of the crown, no matter whether of English or of o reign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning in the country, was an English subject; save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England.' Cockb. Nat. 7.

The tie which bound the child to the crown was indissoluble. [169 U.S. 649, 707] The nationality of his parents had no bearing on his nationality. Though born during a temporary stay of a few days, the child was irretrievably a British subject. Hall, Foreign Jur. 15.

The rule was the outcome of the connection in feudalism between the individual and the soil on which he lived, and the allegiance due was that of liege men to their liege lord. It was not local and temporary, as was the obedience to the laws owed by aliens within the dominions of the crown, but permanent and indissoluble, and not to be canceled by any change of time or place or circumstances.

In sum, a child born in England was a possession of the crown, literally a form of indenture. That is what “subject” really means, a form of subjection that was utterly dissolved by the Declaration of Independence.

Citizenship appertains exclusively to the allegiance of parentage, else the choices and preferences of those parents, as legitimately exercised under law, including changing citizenship by naturalization, is not something so easily superseded unless the State has a claim on the baby, the parents allegiances notwithstanding. Effectively, for government to determine the citizenship of a baby without regard to its parents is in some respects not only indenture, it is anti-family.

Allegiances of parentage are not so easily transgressed in law as one would suppose either. Back to the dissenting opinion:

Twiss, in his work on the Law of Nations, says that 'natural allegiance, or the obligation of perpetual obedience to the government of a country, wherein a man may happen to have been born, which he cannot forfeit or cancel or vary by any change of time or place or circumstance, is the creature of civil law, and finds no countenance in the law of nations, as it is in direct conflict with the incontestable rule of that law.' Volume 1, p. 231.

It’s really quite an opinion.

Fuller goes on to cite Story, Taney, and any number of opinions from within the Department of State, proving that Gray et al. could in no way honestly be citing historical precedent within the US as regards common law in this instance. He even includes citation to the Federal Convention as well, indicating that the issue was raised and disposed of in opposition of the majority opinion.

When he’s done with court and general pre-war precedent regarding citizenship, then Fuller looks to the essential precedent to the 14th Amendment, the Civil Rights Act of 1866, passed a mere two months before the drafting of the Amendment:

The civil rights act became a law April 9, 1866 (14 Stat. 27, c. 31), and provided 'that all persons born in the United States, and not subject to any foreign power, excluding Indians [169 U.S. 649, 720] not taxed, are hereby declared to be citizens of the United States.' And this was re-enacted June 22, 1874, in the Revised Statutes (section 1992).

The words 'not subject to any foreign power' do not in themselves refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that, nevertheless, they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens.

One notes that citizens of a foreign country are usually expressly prohibited from taking other citizenship without having renounced their native allegiance. It is patently illogical that their children would be allowed by that foreign power to do otherwise.

He completed his treatise addressing treaties between China and the US as well.

 

Now let's take a look at Bouvier’s Law Dictionary, most applicable to the understanding of the word, “subject,” common at the time the 14^th Amendment was drafted and ratified:

SUBJECT, persons, government. An individual member of a nation, who is subject to the laws; this term is used in contradistiction to citizen, which is applied to the same individual when considering his political rights.

2. In monarchical governments, by subject is meant one who owes permanent allegiance to the monarch. Vide Body politic; Greenl. Ev. §286; Phil. & Am. on Ev. 732, n. 1.

ALL of these cases hinge upon the meaning of the term “subject to the jurisdiction thereof.” If I'm driving in Europe, I have to obey their traffic laws because I am WITHIN their jurisdiction. That doesn't make me a European SUBJECT.

Imagine for a moment a pregnant woman is on an airplane. It lands in a foreign country for a stopover and the woman delivers. They fly home the next day. Is the kid Italian, German, Japanese? If the stopover was on Guam, the SCOTUS says that the baby is American citizen as a matter of natural law? Even if the kid was here for two days and the parents have no intention of ever setting foot in the US again? Doesn’t it stand to reason that this flies in the face of natural law principles which obviously dictate that the child’s citizenship should appertain to whatever nation and culture from which the parents originate, where it learned its language and customs? To argue otherwise is insane.

But what about children of permanent residents, who are born in the US? If they are raised in the United States and therefore adsorb its culture and loyalties, aren’t they due the Constitutional protections of their natural law rights?

First let’s examine whether permanent residents deserve Constitutional rights in the first place. The first case under which the Federal government extended the ability to confer Constitutional rights to aliens was Bridges v. Wixon. Here again, political leanings of the offending justice bears some examination.

The power to extend rights is to gain the power to take them. The Constitution is a social contract among “we the people of the United States” by which to mutually guarantee that the government it defines does not have the power to violate those pre-existing rights. Back to Bouvier:

CITIZEN, persons. One who, under the constitution and laws of the United States, has a right to vote for representatives in congress, and other public officers, and who is qualified to fill offices in the gift of the people. In a more extended sense, under the word citizen, are included all white persons born in the United States, and naturalized persons born out of the same, who have not lost their right as such. This includes men, women, and children.

2. Citizens are either native born or naturalized. Native citizens may fill any office; naturalized citizens may be elected or appointed to any office under the constitution of the United States, except the office of president and vice-president. The constitution provides, that " the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." Art. 4, s. 2.

3. All natives are not citizens of the United States; the descendants of the aborigines, and those of African origin, are not entitled to the rights of citizens. Anterior to the adoption of the constitution of the United States, each state had the right to make citizens of such persons as it pleased. That constitution does not authorize any but white persons to become citizens of the United States; and it must therefore be presumed that no one is a citizen who is not white. 1 Litt. R. 334; 10 Conn. R. 340; 1 Meigs, R. 331.

4. A citizen of the United States, residing in any state of the Union, is a citizen of that state. 6 Pet. 761 Paine, 594;1 Brock. 391; 1 Paige, 183 Metc. & Perk. Dig. h. t.; vide 3 Story's Const. 1687 Bouv. Inst. Index, b. t.; 2 Kent, Com. 258; 4 Johns. Ch. R. 430; Vatt. B. 1, c. Id, 212; Poth. Des Personnes, tit. 2, s. 1. Vide Body Politic; Inhabitant.

 

Thus the Court’s (and the public’s) latter day ignorance of the mid-19th Century term "subject" is, in my opinion, a deliberate misconstruction generated in law schools and the media for the unexpressed purpose of diluting citizenship to the point of meaninglessness.

 

[blackie]

Protect our borders and coastlines from all foreign invaders!

Support our Minutemen Patriots!

Be Ever Vigilant!

[janetgreen]

Second were the children of members of invad­ing armies who were born on U.S. soil while it was occupied by the foreign army.

In that case, the millions of anchor babies born in Los Angeles over the past years are NOT citizens.

[ncdave4life]

I wrote:
But if he were to present such evidence, then I would reconsider my conclusion.

John Valentine replied:
He did. You should.

Where? When? Please post a link.

-Dave

[ncdave4life]

stopem wrote:

"As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s par­ents, remained a citizen or subject of the parents’ home country was not entitled to claim the birth­right citizenship provided by the 1866 Act."

Anchor baby is against the 14th amendment.

No, stopem, read it again. The "formulation" he's talking about is in the 1866 Civil Rights Act, not in the 14th Amendment.

That provision was superceded by the 14th Amendment, which does not contain any such formulation.

-Dave

[John Valentine]

The evidence was in his article. He presented evidence regarding the interpretation of the phrase "and subject to the jusisdiction thereof" by the authors of the amendment.

On re-reading your comment, I now understand that you want evidence not only that the authors intended the meaning to be taken as described, and said so at the time, but that each legislator in each State had read and was familiar with the legislative history of the Amendment prior to voting on it.

Of course, no such evidence exists, nor would it exist for virtually any Constitutional amendment. If there is a record of the debates over adoption of the amendment in the state legislatures, some light might come from those debate records, but I would not expect much. After all, the State Legislatures were not debating over the language, they were debating adoption.

Legislative intent can best be discerned from the debates where the language was forged, and that was in the Congress, not in the State legislatures.

[ncdave4life]

Let us begin with some common ground, and stipulate that originalism is the only legitimate and honest approach to legal interpretation. If you are a judicial activist of the "living, breathing Constitution" variety, then we have no common ground, and nothing to talk about. "Intent" (legislative or otherwise) is of no consequence to liberal activist scumholars.

Originalism begins with a desire for honesty, an allegiance to the integrity of the law. But there are several subtly different variants of originalism, which differ mainly in the relative weights that they give to different ways of discovering the "original" meaning.

A "textualist" approach looks first to the plain meaning of the words, as they would have been understood at the time the law was enacted. A textualist would argue that legislative history is of little consequence when the meaning of the words is plain. Words mean what they mean. Or, rather, they mean what they meant when penned. If laws do not mean what they say, then how are the people to ever hope to understand and obey them? It is the responsibility of the people who craft the laws to write what they mean to say, and the rest of us have the right to assume that the words mean what they say. Only if there is genuine ambiguity or confusion about what the words mean should we seek ways of resolving that confusion. One way to resolve such confusion is to look at the history of the debates surrounding the law to try to discern its intended meaning. But, in the case of criminal law, it can be argued that such confusion should be resolved simply by saying that "the benefit of the doubt goes to the accused."

Thomas Jefferson was an originalist, inclined to textualism. In 1808 he wrote, "The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law."

In other words, if there is conflict between the plain meaning of the words and what the historical record seems to say about the intent, it is safest to trust the plain meaning of the words.

Obviously, for a textualist, Prof. Eastman's argument is unpersuasive, because he would have us accept an interpretation different from the plain meaning of the words. End of story.

Fortunately for Prof. Eastman, textualism is not the only respectable originalist approach to legal interpretation. The "original intent" approach argues that the meaning we should accept is the meaning which the creators of the law intended. To discern that meaning, of course they consider the plain meaning of the words. But they also seek out the historical record, including debates over the provision, and the words of its supporters.

Sometimes this is loosely referred to as the "legislative history," or "legislative intent." But "legislative intent" does not mean just "the intent of the legislature." It means "the intent of those who legislated (made) the law." For statutes, that is a distinction without a difference, because it is the legislatures which make the statutes. But for constitutions and constitutional amendments, there is a big difference, because legislatures do not make and amend constitutions.

The Congress cannot make a Constitutional Amendment. They just propose it. It is the ratification process which makes it law, and the "intended meaning" is the meaning understood by those who made it law. The debate in Congress is only one small part of the "legislative history" of a Constitutional amendment, and it is not the most important part.

If there were genuine ambiguity, with two possible intended meanings discernable from the words, and neither interpretation more plain and obvious than the other, and if the only other evidence of intent extant were the record of the debates in Congress, then that record would be persuasive. But even for an ardent "original intent" advocate, the record of debate in Congress, by itself, should not be sufficient evidence to trump the plain and obvious meaning of the words.

Even for a non-textualist, to justify adopting an interpretation other than the plain meaning which is obvious from the wording, he needs to show that the non-obvious interpretation was what the ratifiers meant. The presumption, absent evidence to the contrary, must always be that the plain and obvious meaning is what the ratifiers understood the provision to mean, because that is probably all they had. We know they read the words of the amendment before they voted on it, but what evidence is there that they were familiar with the details of what had been said about it in the debate in Congress?

I prefer Jefferson's approach, which first seeks to discern the original intended meaning of the law from the plain meaning of the words, and only in doubtful cases by reference to the historical record of the debates surrounding its enactment. One good reason for that is that we have a perfect record of the words in the Amendment, itself, and only an incomplete record of the debates. But I will admit that if there were persuasive evidence that most of those who participated in the ratification of the Amendment accepted a different interpretation of its meaning, then Eastman would have a good case.

-Dave

[John Valentine]

Thank you for your cogent reply. You are obviously a serious, thoughtful man.

I too would be very interested to see evidence relating to how this issue was seen in the various State legislatures, and I do agree that such information would be most central to the debate.

[ncdave4life]

Thank you, John.

I emailed my original critique [1] to Prof. Eastman a few days ago, and I've just now received a most gracious reply from him. It seems that all three of us are in agreement that, as you put it:

I too would be very interested to see evidence relating to how this issue was seen in the various State legislatures, and I do agree that such information would be most central to the debate.

I am please to report that Prof. Eastman is currently researching the question.

What follows is Prof. Eastman's reply to me.

-Dave
dave07 at burtonsys dot com but please no spam

---

Dear Mr. Burton,

Thank you for your very thoughtful response to my position on Birthright Citizenship. Let me endeavor to convince you on the premise of my argument.

You are correct to point out that children of diplomats are not subject to the jurisdiction of the United States, and that as a result the clause is not entirely redundant. Although I think my point is still valid if the clause is largely redundant, there is a broader problem. Given the fiction of extraterritoriality, diplomats are not subject to the jurisdiction because they are not even considered to be on sovereign U.S. soil. The embassy is considered under the jurisdiction of its sovereign, not under U.S. jurisdiction. Children born there are therefore not “born in the United States.” This is true even if the diplomat or the diplomat’s wife goes to a local hospital to give birth—the fiction of extraterritoriality follows the diplomat where he or she goes.

I also agree with your second point. The relevant understanding is the one held by those who ratified, not those who drafted, the 14th Amendment. But here, as in so many areas of constitutional interpretation, it is important to ascertain the common understanding of the words used from whatever source, because evolution in dictionary usage may well have changed over time. Seeing that Trumbell and Howard had a particular understanding of the words used, the fact that their understanding seems odd to us may be a function of our own distance from the discussion, not a function of them using words differently than those who ratified the document. Absent evidence that a contrary understanding was commonplace among the ratifiers, I think the Senate floor debates are pretty important. But the ratification debates should nevertheless be consulted, and I am endeavoring to do just that (although I confess it is a very large task).

Best regards,
John Eastman

Dr. John C. Eastman
Professor of Law, Chapman University School of Law
Director, The Claremont Institute Center for Constitutional Jurisprudence
One University Dr.
Orange, CA 92866
(714) 628-2587