In two prior postings (here and here), I listed flaws in the constitutional arguments of opponents of birthright citizenship for children of aliens living here illegally.

For children to be American citizens by virtue of the Fourteenth Amendment, they must be born within American territory and they (or rather their parents) must be “subject to the jurisdiction” of the United States. Those opposing birthright citizenship hurt their own case by basing it principally on the claim that visiting foreigners never qualify as “subject to the jurisdiction.”

The problems with that claim are:

* The congressional debates cited to support it are ambiguous on the subject, at best.

* Before adoption of the Fourteenth Amendment, many (probably most, perhaps all) African-American were legally foreigners, so the Amendment had to include foreigners to achieve its purpose of extending citizenship to them.

* The U.S. Supreme Court already has decided twice that the meaning of “subject to the jurisdiction” is governed by the English common law doctrine of allegiance. That doctrine grants local citizenship to the children of most visiting foreigners.

I do not have a dog in this hunt. But if I were legal counsel for opponents of birthright citizenship, I would take their legal argument in an entirely different direction. And I would try to square my case with precedent instead of arguing that precedent should be disregarded.

I would develop my case on at least two fronts.

First: I would try to find out how (if at all) the state legislatures that ratified the Fourteenth Amendment understood the phrase “subject to the jurisdiction.”

This seems elementary. When we interpret a murky congressional statute we don’t focus on the intent of the staffers who wrote it, but on the understanding of the members of Congress who enacted it. Similarly, in constitutional interpretation, the understanding of the ratifiers is more important than the views of the drafters. In the context of the Fourteenth Amendment, what was said in the state legislatures is more crucial than what was said in Congress.

Surprisingly, there has never been an authoritative and comprehensive study of how the ratifying legislatures understood the Fourteenth Amendment. The closest thing is James E. Bond’s book, No Easy Walk to Freedom, but it is limited to proceedings in the Southern states.

One reason for this lack is the traditional difficulty of accessing old legislative records and newspaper coverage from the 37 states that considered the Amendment. But the rise of digital archives has made the task much easier. I would put my associates and interns to work exploring the ratifiers’ understanding, if any, of the phrase “subject to the jurisdiction.” In fact, it might be a better use of funds to hire a professional academic researcher. (No, I don’t want the job.)

Second: My argument would flow with Supreme Court precedent rather contradicting it. That precedent is embodied in the cases of Elk v. Wilkins and U.S. v. Wong Kim Ark. Elk held that the Fourteenth Amendment did not turn tribal Indians into citizens. Wong held that the Fourteenth Amendment did grant citizenship to the U.S.-born son of foreigners legally living here. Elk and Wong tell us that (1) the Fourteenth Amendment phrase “subject to the jurisdiction” means that, for a child to be a birth citizen, the parents (or more precisely the father) must be in allegiance to the United States at the time of birth, and (2) allegiance is determined according to the rules of English common law.

According to the rules of English common law, allegiance is either natural or local. Natural allegiance is what you owe to your own country. Local allegiance is what you owe any foreign country you are currently visiting. Either form of allegiance qualifies as “subject to the jurisdiction.”

My ensuing step would be to consider the larger common law context. The word “allegiance” ultimately comes from a Latin word meaning “to tie.” Allegiance does not exist in isolation. It is part of a larger legal contract that ties a sovereign and a citizen together. The citizen (or subject) expressly or impliedly promises obedience and the sovereign grants protection. As the Supreme Court wrote in the Wong case:

Such allegiance and protection [are] mutual,—as expressed in the maxim, “Protectio trahit subjectionem, et subjectio protectionem.” [Protection draws with it the status of the subject, and the status of the subject draws with it protection.]

Next I’d explore the lengthy opinions in Elk and Wong for more guidance. For example, in Wong, the Court quoted the great judge and legal scholar Joseph Story:

“Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: First, birth locally within the dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other words, within the ligeance [sic], of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.” “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” “Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”

Let’s look for a minute at the exceptions that “illustrate and confirm the general doctrine.” Foreign diplomats are not in allegiance to their host country because they carry with them the extraterritorial jurisdiction of their homeland. Citizens of an occupying power are not in allegiance to the host country because the territory they occupy is no longer under the effective protection of the host government. In accordance with same underlying principles, the congressional drafters and the Supreme Court acknowledged another exception: Individual tribal Indians were not in allegiance to the U.S. because at the time they were not governed directly or effectively by the Congress or the federal courts. Like the foreign diplomat and the minions of an occupying power, they were governed directly and effectively only by their own governments.

The Elk decision, which addressed the status of tribal Indians, contains more helpful language:

The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States [and] . . . no one can become a citizen of a nation without its consent.

In other words, the sovereign must consent both to the ties of allegiance/protection and to citizenship.

Consider this famous historical example: In the 18th century, James Somerset, a native of Africa, was captured and forced into slavery in Virginia. But when his master took him to England as part of longer voyage, Somerset escaped and sought the protection of English law. On behalf of the Crown, the court accepted his petition and ruled that he thereby become an English subject—that is, in allegiance to the Crown. This allowed Somerset to obtain a writ of habeas corpus, which led to the judicial declaration that slavery was abolished in England.

Allegiance, then, derives from one seeking the protection of a sovereign (and the sovereign’s legal system), and the sovereign’s reciprocal consent. In the real world, the request for protection and the consent usually are implied rather than express. One seeks protection by entering the country (by travel or by birth) and the sovereign consents by allowing you to remain within territorial boundaries.

So this leads us to the question of whether parents illegally in the country are in allegiance to that country. This case is different those recited by the precedents, but it is governed by precisely the same principles, as Justice Story doubtless would point out.

The Elk case holds that neither allegiance nor protection can be forced on a sovereign without its express or implied consent. If X enters the country in defiance of its laws, X cannot claim that his illicit visit entitles him to the protection that creates a state of allegiance.

Moreover, the person who enters in defiance of the sovereign’s law is by that very act not promising to obey the sovereign’s law. The person may be seeking the protection of some of the sovereign’s laws (e.g., those securing a certain freedom or granting a benefit of some kind), but the entrant is making it clear that he reserves the right to choose what laws he will obey. Allegiance requires more. It requires unconditional and honest submission to the law, not just to whatever laws one happens to like.

Thus, the parent who enters a  country illegally is not really in allegiance to that country. It follows that under the Elk and Wong cases, the parent is not “subject to [U.S.] jurisdiction” in the specialized sense that term has in the Fourteenth Amendment. It follows further that the parent’s child has the same sort of status held by the child of the foreign diplomat: A citizen of his own homeland, but not of the United States.