Ninth Circuit and Birthright Ciltizenship
Mattathias Schwartz at NYT:
A federal appeals court ruled on Wednesday that President Trump’s executive order restricting birthright citizenship violated the Constitution, affirming a district court judge’s nationwide injunction and bringing the issue one step closer to a full constitutional review by the Supreme Court.
In a 48-page opinion, two of the three judges on the panel for the U.S. Court of Appeals for the Ninth Circuit found that Mr. Trump’s executive order “contradicts the plain language of the 14th Amendment’s grant of citizenship to ‘all persons born in the United States and subject to the jurisdiction thereof.’
From the opinion:
We conclude that the text of the Fourteenth Amendment supports the Plaintiffs’ interpretation. In interpreting the text of the Constitution, courts are “guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’” District of Columbia v. Heller, 544 U.S. 570, 576 (2008) (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)). When the Fourteenth Amendment was adopted, as it is today, “jurisdiction” was commonly used in reference to the power of the courts, defined as “[t]he legal power or authority of hearing and determining causes.” Noah Webster, An American Dictionary of the English Language 732 (1865). But in reference to nations, “jurisdiction” was also defined as the “[p]ower of governing or legislating; the right of making or enforcing laws; the power or right of exercising authority;” and the “limit within which power may be exercised,” or “extent of power or authority.” Id; see also Benjamin Vaughan Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 671 (1879) (defining jurisdiction as “[t]he authority of government; the sway of a sovereign power.”). This ordinary meaning of jurisdiction is consistent with Plaintiffs’ interpretation of “subject to the jurisdiction thereof” as subject to the laws and authority of the United States.
Defendants point to no contrary dictionary definitions that define jurisdiction in terms of allegiance and protection. Indeed, they make no arguments about the ordinary meaning of the Citizenship Clause at all. Defendants’ only argument based on the text of the Citizenship Clause is that “subject to the jurisdiction” cannot simply refer to “regulatory jurisdiction,” because that definition would render the Citizenship Clause’s requirement of jurisdiction surplusage. They claim that the United States has “exclusive and absolute” regulatory jurisdiction within its territory, so that all children born in the United States are subject to its jurisdiction. Id. They further contend that that definition does not explain why certain groups, such as Native Americans and children of diplomats, were excluded from citizenship.
Supreme Court precedent makes clear that reading “subject to the jurisdiction thereof” to mean “subject to United States authority and laws” is not redundant. In Wong Kim Ark, the Supreme Court directly addressed the meaning of the phrasobject of” the dual requirements of birth in U.S. territory and being subject to United States jurisdiction was, “to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases, – children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State, both of which . . . had been recognized exceptions to the fundamental rule of citizenship by birth within the country.” Id. at 682.e “subject to the jurisdiction thereof.” 169 U.S. 649. The Court stated that “[t]he real object of” the dual requirements of birth in U.S. territory and being subject to United States jurisdiction was, “to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases, – children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State, both of which . . . had been recognized exceptions to the fundamental rule of citizenship by birth within the country.” Id. at 682.
