John Eastman opens this symposium with a provocative and thoughtful essay on the meaning of the American Revolution and its implications for birthright citizenship. He argues that under the common law, the rule of “birthright subjectship” was that anyone born on the king’s soil was under the king’s protection and necessarily the king’s subject in perpetuity. The U.S. Supreme Court made the same claim in Trump v. Barbara when it concluded that in England, a foreigner who had a child there and who left the next day would have produced a birthright subject.

Eastman then argues that the American Revolution rejected perpetual allegiance by birth and adopted a conception of government as a social compact, founded on the consent of the governed. On this foundation, Eastman argues that the 14th Amendment’s understanding of citizenship requires parents to owe a complete political allegiance to the country.

I think Eastman both concedes too much and goes too far.

The Common Law, Rightly Understood

The conventional view of the common law among scholars of all persuasions is that a foreign child’s birth on the sovereign’s soil was alone sufficient to confer birthright subjectship. The Supreme Court concluded in Barbara that the exclusion of the children of foreign soldiers and ambassadors, and the children born to members of Indian tribes, depended on a fiction of “extraterritoriality.”

But the matter is both more complicated and more uncertain.

To start, the extraterritorial fiction has essentially no historical support. In Calvin’s Case, the leading common law authority on birthright subjectship, Sir Edward Coke expressly rejected a notion of extraterritoriality. Coke explained that a child born of an enemy soldier, “although born upon [the king’s] soil,” was not a birthright subject because the child was not born “under the ligeance of a subject” or “under the protection of the king.” That is, a natural-born subject is one born to another subject who was under the king’s protection.

Children of invading soldiers did not count because the invading parents were not under the king’s protection. It had nothing to do with a fiction of extraterritoriality. Indeed, Coke writes that if the soldiers have “issue” in a town they are occupying, their issue are not birthright subjects. He says nothing about the children born of loyal citizens. The common law, in fact, adopted the contrary rule, called postliminy: the children born of loyal citizens in occupied territory were deemed birthright subjects upon the reacquisition of the territory.

William Blackstone, in his influential Commentaries, described the rule respecting foreign ambassadors similarly: their children were not natural-born subjects because they were born under the protection of, and within the allegiance of, another sovereign represented by the father, the ambassador. There is no fiction of extraterritoriality in Blackstone either.

Indeed, the idea that foreign ambassadors are fictitiously walking on their own sovereign’s soil comes from Emer de Vattel’s widely read treatise on the law of nations. But that treatise also described the rule of birthright citizenship as depending on the parents’ citizenship. It is somewhat odd to rely on Vattel for extraterritoriality while ignoring him on the rule of birthright citizenship.

As for the Indian tribes, it was almost universally acknowledged that they were within U.S. territory. This is why the U.S. owed them partial protection and had a trust obligation to the tribes.

What these examples show is that the common law rule was not “birth on soil, subject to some fiction of extraterritoriality.” Nor was the common law rule “birth on soil” alone. The rule was birth on soil and birth to parents under the sovereign’s protection. Whether the child of an ambassador, soldier, or foreigner was under the sovereign’s protection depended on whether his parents were.

To summarize the rule, here is Supreme Court Justice Joseph Story: “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” (emphasis added).

Illegal Aliens and Protection

Why is this important, and why do I think that Eastman concedes too much on the common law? Because once the test is precisely stated, there is at least a question whether children born to aliens who had come contrary to the sovereign’s permission and against the sovereign’s law would have been considered under the sovereign’s protection. As I have explained in my own scholarship, friendly aliens were generally presumed to be under that protection.

But in certain circumstances, such as an alien from a country at war with England, express permission was required; without it, those aliens were not under the sovereign’s protection. In an American case arising out of the War of 1812, Clarke v. Morey, Chancellor James Kent explained the rule as follows: “A lawful residence implies protection, and a capacity to sue and be sued.”

Some categories of aliens like merchants generally required express permission to enter. Magna Carta provided that permission but stipulated that they would not be under the sovereign’s protection if they had been “previously and publicly forbidden” from entering the realm. Other statutes expressly permitted merchants to enter and placed them under the “protection” of the king. In short, it is at least an open question whether aliens who came contrary to the express laws of the realm would have been under the “protection” of the king for purposes of the common law rule.

The Meaning of “Jurisdiction”

Where Eastman goes too far, however, is his interpretation of the 14th Amendment’s text itself. Although there is evidence that it requires a complete “political allegiance,” the problem with this view is that the word “allegiance” had a dual meaning. It meant loyalty to the sovereign and an obligation to obey the sovereign—an obligation foreigners had as well. The Supreme Court’s decision in Trump v. Barbara adopted this latter view.

The better answer is that the test envisions a complete legislative, executive, and judicial jurisdiction. That explains the exclusion of ambassadors, who were not subject to any of the nation’s jurisdiction. It explains the exclusion of soldiers, who were subject to the laws of war and the law of nations, but not to the municipal law. And it explains the exclusion of the Indian tribes, which were “domestic dependent nations” under international law over which the U.S. exercised only partial sovereignty.

This test also demonstrates why Wong Kim Ark may have been rightly decided and why the dissent in Trump v. Barbara was correct to home in on domicile. That is because domiciled foreigners under international law are subject to the complete jurisdiction of the country in which they are domiciled, even if they have some degree of “political allegiance” to their country of origin, and even if that other country might claim the individual for its own purposes.

As U.S. Secretary of State William L. Marcy explained in 1853 during the famous Kostza Affair, once foreigners “acquire a domicil[e], international law at once impresses upon them the national character of the country of that domicil[e],” such that other countries must treat Kostza (a domiciled foreigner) “as an American citizen.” Wong Kim Ark was completely subject to U.S. jurisdiction in this sense, too, even if the Emperor of China still claimed him as a subject.

But what of temporary visitors? As I have shown, they and their children could not be conscripted into military service. Courts did not exercise a general judicial jurisdiction over them. Other restrictions existed under international law on how a nation could treat temporary visitors. The U.S. arguably does not exercise a complete legislative, executive, and judicial jurisdiction over temporary visitors, as it does over domiciled foreigners.

Despite these quibbles, there can be no doubt that public opinion has come a long way on these issues, due in large measure to John Eastman’s work.