In a recent comment, one of my co-bloggers stated,
Contra the textualists and originalists, [the Constitution’s] meaning has always been debated since it was written.[1]
The implication seems to be that, if the framers of our founding document disagreed regarding its meaning, then the originalist enterprise of objectively ascertaining the original public meaning of various constitutional provisions is necessarily doomed to failure.[2] I find I must disagree with this assessment.
Even if the framers of the Constitution disagreed regarding some aspects of its meaning, this doesn’t necessarily make it impossible to ascertain original meaning in all circumstances. Consider, for instance, the Fourteenth Amendment’s Citizenship Clause, a provision with which I’m at least somewhat familiar.[3] It reads:
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.[4]
During the drafting of this provision, both supporters and opponents agreed that “subject to the jurisdiction” in the Clause’s italicized qualifier meant “subject to sovereign authority,” or simply “subject to the civil and criminal laws of the land.” They disagreed, however, about the degree of subjection to sovereign authority required for birthright citizenship under the Clause. Supporters contended that the Clause required “a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department”;[5] hence, birthright citizenship under the Clause was limited to those “completely within our jurisdiction, who are subject to our laws . . . .”[6] Supporters therefore argued that the widely-supported exclusion of U.S.-born Indians from birthright citizenship would continue under the Clause, because then-existing federal laws exempted American Indians from U.S. jurisdiction over crimes involving only Indians:
We have had in this country, and have to-day, a large region of country within the territorial limits of the United States, unorganized, over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indians roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them.[7]
Opponents, by contrast, argued that the Clause would grant Indians birthright citizenship, because they were at least partially subject to federal authority via “military commanders in the neighborhood of the reservations,” and “civil agents who have a control over [Indians] on behalf of the Government.”[8] Consequently, opponents unsuccessfully pushed to add a specific exclusion for “Indians not taxed” to the Clause.[9] So the framers of the Citizenship Clause clearly disagreed about at least one aspect of its meaning.
The existence of such disagreement, however, does not render the Clause’s original meaning completely indeterminate. On the contrary, even though the framers disagreed about the Clause’s effect on Indians, both supporters and opponents nevertheless agreed that the provision would grant birthright citizenship to U.S-born children of Chinese aliens temporarily residing in the United States.[10] Senator Edgar Cowan read the Clause to mean that “everybody who shall be born in the United States shall be taken to be a citizen of the United States”;[11] hence, Cowan opposed the provision, because such a broad grant of citizenship would prevent states from expelling the Chinese transients and Gypsies he disliked. Far from denying Cowan’s reading, Senator John Conness of California agreed that the Clause would grant birthright citizenship to “children begotten of Chinese parents in California,”[12] and defended this grant of citizenship on its merits.[13] No other Senator disagreed with Cowan and Conness’ reading, which suggests that it was generally accepted.[14] Indeed, Senator Lyman Trumbull (and his opponents on this issue) had previously affirmed that Chinese immigrants were entitled to birthright citizenship under the Civil Rights Act of 1866,[15] which the Fourteenth Amendment was widely understood as constitutionalizing.[16]
Using the foregoing discussion of the framers “original expected applications” as a roadmap,[17] we can arrive at some conclusions regarding the original meaning of the Citizenship Clause. First, both supporters and opponents of the Clause apparently agreed that “jurisdiction” meant “sovereign authority” or “sovereign power.” Second, they agreed that some groups (native-born blacks and Chinese immigrants) were clearly entitled to birthright citizenship under the Clause; but they disagreed over whether or not the same was true of Native Americans. This disagreement over the extent of subjection to “sovereign authority” required for a constitutional entitlement to birthright citizenship suggests a third conclusion: that “jurisdiction” in the Clause was a vague term, with a “core” original meaning that clearly encompassed native-born children of transient aliens, and a “penumbra” that may or may not have covered U.S.-born children of Native Americans.[18]
Thus, it would appear that originalism, when done carefully, can indeed ascertain some aspects of a provision’s original meaning, even when the framers disagreed about other aspects of that meaning.
[1] Steve2, Comment to Let’s Give Up on the Constitution, Alexandria (Jan. 1, 2013, 8:13 AM), http://www.aleksandreia.com/2012/12/31/lets-give-up-on-the-constitution/comment-page-1/#comment-100911.
[2] Cf. Steve2, Originalism and Textualism, Alexandria (Sep. 2, 2012), http://www.aleksandreia.com/2012/09/02/originalism-and-textualism/ (deeming “original meaning” to be “troublesome” because the Constitution’s “meaning was being debated almost before the ink was dry.”).
[3] Parts of this post are drawn from Matthew Ing, Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause, 45 Akron L. Rev. 719 (2012).
[4] U.S. Const. amend. XIV, § 1, cl. 1 (emphasis added).
[5] Cong. Globe, 39th Cong., 1st Sess. 2895 (1866) (statement of Sen. Howard).
[6] Id. at 2893 (statement of Trumbull)
[7] Id. at 2894 (statement of Trumbull). See also id. at 2893 (statement of Trumbull) (rhetorically inquiring, “Can you sue a Navajoe Indian in court?”); id. (“Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction.”); id. at 2895 (statement of Howard) (noting that “an Indian belonging to a tribe, although born within the limits of a State,” was not “subject to this full and complete jurisdiction,” because such an Indian “is subject for crimes committed against the laws or usages of the tribe to the tribe itself,” such that federal courts could not “punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe.”).
[8] Id. at 2892 (statement of Sen. Doolittle).
[9] Id. at 2890 (statement of Sen. Doolittle) (proposing the addition of “excluding Indians not taxed”); id. at 2897 (voting down this amended by 10-30).
[10] See id. at 2891 (statement of Sen. Conness) (“The habits of [Chinese immigrants], and their religion, appear to demand that they all return to their own country . . . . Those persons return invariably, while others take their places . . . .”).
[11] Id. at 2891 (statement of Sen. Cowan).
[12] Id. at 2891 (statement of Sen. Conness).
[13] Id. at 2891-92 (noting that “this portion of our population, namely, the children of Monglian parentage, born in California, is very small indeed, and never promises to be large,” because of their transience, and because “they do not bring their females to our country but in vary limited numbers . . . .”).
[14] See Bryan H. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67, 68 Ohio St. L.J. 1509, 1588 (2007). (“Lack of dispute, in a deliberative body, in the face of a view clearly and repeatedly articulated within that very same body on a plainly important matter, is inherently confirmatory of such a view.”).
[15] Act of Apr. 9, 1866, Ch. 31, § 1, 14 Stat. 27 (“[A]ll 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 . . . .”); see Cong. Globe, 39th Cong., 1st Sess. 498 (1866) (statement of Sen. Trumbull) (stating that the Civil Rights Act would “[u]ndoubtedly” grant birthright citizenship to U.S.-born children of Chinese and Gypsy aliens); id. at 1679 (stating that the Civil Rights Act “comprehends the Chinese of the Pacific States . . . the people called Gypsies, and [black freedmen]. Every individual of those races, born in the United States, is by the bill made a citizen of the United States.”). Thus, even though Trumbull later stated that “subject to the jurisdiction” meant “[n]ot owing allegiance to anybody else[,] id. at 2893, his earlier statement counsels against reading this later one as excluding birthright citizenship for U.S.-born children of aliens. Rather, Trumbull’s statement regarding “allegiance” is best read as applying only to the tribal Indians to which he was referring.
[16] See, e.g., Cong. Globe, 39th Cong., 1st Sess. 2896 (1866) (statement of Sen. Howard) (“We desired to put this question of citizenship . . . beyond the legislative power of [opponents of the Civil Rights Act of 1866] . . . .”); id. at 3069 (statement of Rep. Van Aernam) (stating that the Fourteenth Amendment’s first section as “[g]iv[es] constitutional sanction and protection to the substantial guarantees of the civil rights bill . . . .”). See also Cong. Globe, 39th Cong., 2d Sess. app. at 82 (statement of Rep. Miller) (“The first section thereof makes all persons born or naturalized in the United States and subject to the jurisdiction thereof citizens . . . . This is in effect ingrafting the civil rights bill . . . .”).
[17] See Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291, 296 (2007) (“Original expected application asks how people living at the time the text was adopted would have expected it would be applied using language in its ordinary sense (along with any legal terms of art).”); id. at 303 (acknowledging that original expected application “helps us understand the original meaning of the text” and “is important . . . as an aid to interpretation . . . .”); John O. McGinnis & Michael Rappaport, Original Interpretive Principles as the Core of Originalism, 24 Const. Comment. 371, 378 (2007) (“[I]t is hard to ascertain what constitutional provisions mean without reference to expected applications. . . . [S]ome of the best evidence of that meaning would be the expected applications, especially when widely held.”).
[18] See Lawrence Solum, More on Colby on the Federal Marriage Amendment & Originalism, Legal Theory Blog (July 10, 2008, 01:50 PM), http://lsolum.typepad.com/legaltheory/2008/07/more-on-colby-o.html (using this “core”/”penumbra” terminology). It’s worth noting that, in contemporary discussions regarding the Citizenship Clause’s applicability, this vagueness in the original meaning of “jurisdiction” appears effectively irrelevant, since I am unaware of any active movement to eliminate Native Americans’ statutory entitlement to birthright citizenship under 8 U.S.C. § 1401(b) (2006). The Clause’s “core” meaning, however, is relevant, because it suggests that proposals, to deny birthright citizenship to U.S.-born children of transient aliens may be inconsistent with the original meaning of the Citizenship Clause. See, e.g., Howard Sutherland, Citizen Hamdi: The Case Against Birthright Citizenship, Am. Conservative, Sept. 27, 2004, http://www.theamericanconservative.com/articles/citizen-hamdi/ (making such a proposal).
I found steve2′s coment you quote to be prima facie absurd, but that’s nothing new.
We should at least pause to note the irony: “they agreed that some groups…were clearly entitled to birthright citizenship under the Clause; but they disagreed over whether or not the same was true of Native Americans.”
It wasn’t irony so much. At that time the US government dealt with the various tribes by treaty, and in principal at least regarded them as sovreign entities at least within their territories. Protectorates, if you will.
I think you misunderstand my claim or I didnt make it clear enough. Even now, I think most people agree on the meaning of most of the Constitution. I suspect that there was even more general agreement by those who wrote the Constitution, but even your example points out that the agreement was not 100%, and these were the guys who wrote the thing. Remember that the people who wrote, or were alive when it was written, also passed the Alien and Sedition Acts. What is the chance they survive if written post-Marbury. I also think it worthwhile reading Madison, especially Federalist 78. I think he tacitly admits that there was already disagreement, and lays out how it should be resolved. (Though my favorite part is actually at the end where he acknowledges that there will inevitably be a huge body of law built upon the Constitution requiring interpretation by future judges. He was also quite prescient in pointing the problems that would occur when the judiciary became entangled with another branch.)
Steve
http://www.constitution.org/fed/federa78.htm
Link to 78 for those who have trouble finding stuff on the net.
Steve
DADvocate – I didn’t find steve2’s comment to be “prima facie absurd”; if we know that the framers disagreed about the Constitution’s meaning, then it’s reasonable to wonder whether this poses a problem for determining the original meaning of constitutional provisions. In my view, the answer to this question is, “sometimes.” Hence, in my post, I’m careful to leave open the possibility that linguistic disagreement may, in some circumstances, pose a problem for ascertaining original meaning.
Jack Shifflett – I probably could have noted that irony; and I probably also could’ve expressed annoyance at the attitudes of both Cowan and Conness towards Chinese immigrants. However, the point of my post was to analyze what the framers of the Fourteenth Amendment said and meant; it wasn’t to critique their racial views.
Steve2 – I don’t disagree that the framers disagreed about the meaning of various constitutional provisions. Indeed, my post concedes the existence of such disagreement. My point is that such disagreement doesn’t necessarily pose a problem for determining the original meaning of constitutional provisions, at least in some circumstances. Perhaps you agree with this point; but if so, then I’d appreciate an explanation of what you meant by the second sentence in the following excerpt:
Reading the history of the Constitution, it is clear that its meaning was being debated almost before the ink was dry. Thus, original meaning has always seemed troublesome to me.
. . . which was taken from this post: aleksandreia.com/2012/09/02/originalism-and-textualism/.
I see a problem for us trying to determine what something means, when the people who actually wrote the Constitution disagreed upon some of its meaning. I would agree that the bulk of the Constitution was readily agreed upon by those who wrote it, but just like today, it was the parts they disagreed upon that caused and still cause problems. I think maybe where I go wrong is in not offering an adequate qualifier. What I should have said is that some of its meaning, or parts of it, were being debated almost from the start. With the relatively recent acknowledgement of the Anti-Federalist contributions to the Constitution and its meaning, I think we have a better idea about how people were actually interpreting it. I think it is also pretty clear that Madison, hence probably a majority of its writers, intended that SCOTUS be responsible for both interpretation of meaning and compliance.
Steve
Thanks for the clarification. I agree that linguistic disagreement can cause difficulties for ascertaining parts of the Constitution’s original meaning.
Even those of us who still believe in birthright citizenship may reasonably disagree about the citizenship status of a child born to two foreign citizens on the premises of their native country’s embassy, which I’m not sure anybody has made a hard and fast ruling about.