Lord Justice Blackstone was an eminent justice in the British legal system before the American Revolution but after Britain's Glorious Revolution in 1688. His book Commentaries on the Common Law reads like an 18th Century legal textbook. It is broad in scope and filled with citations to case law and Parliamentary legislation, unusual for writings of the era. As a result, it has a level of scholarship that would leave many modern writers to shame.
I have not made a study of the matter, but, after 20 years of amateur historical research on the development of the US Constitution and 16 years of practicing law, my impression is that few lawyers or scholars today are well versed on the history of citizenship or immigration law. They regularly feign knowledge but only reflect an understanding of history that goes back to their birth or the birth of the US Constitution.
I would suggest any commentator wishing to be informed on these matters should read at least a handful of books from the Pre-Revolutionary era. Samples include John Locke, Blackstone, Montesquieu, King Alfred's Code (c. 890, if recollection serves), Magna Carta, etc.
Blackstone on citizenship is truly enlightening as to the development of British policies on citizenship and the Parliamentary motivations for those policies.
Much of the debate on the topic these days focuses on the Fourteenth Amendment and its history. This is a dangerous error.
We all know that words have meaning. We all know that words' meaning shift over time, otherwise "doom" would still refer to pronouncements of judgment by the king rather than an ominous future. Lawyers all know that law is filled with not just buzzwords but legal phrases that significance and a history of interpretation. Sometimes the interpretation is consistent. Sometimes the interpretations vary widely. Still, beginning with the University of Bologna cannon law professor Gratian in the 12th century, legal interpretation has ever increasingly studied different cases to struggle to find consistent interpretations of principle. These struggles often fail, but the attempt is always enlightening. These struggles also cause legal phrases like res ipsa locquitur or due process or self-incrimination to carry meaning for lawyers far beyond what the average layman might suspect.
The Fourteenth Amendment, read in the context of Blackstone, has a similar problem. Blackstone explains in his Commentaries what "subject to the jurisdiction" of the King means. He explains the statutory sources for it. He reads into a justification for it.
I will summarize, poorly, his argument. He breaks the world of people living in Britain at any one moment into three groups: citizens, denizens, and foreigners. He breaks citizens into natural born and naturalized.
Citizens are persons who owe an exclusive duty of allegiance to the king and only the king. The king owes a duty of protection back. Citizens could own real estate. They could transact business.
Denizens were persons not owing an exclusive duty of allegiance. The denizen's loyalty was split between his own king and the limited respect owed to the British crown while in Britain. The denizen had to respect the laws on public order, commerce, and behavior while in Britain and was subject to royal punishment if the denizen violated those rules, just like a citizen. The denizen could not at Blackstone's time own real estate but he could engage in commerce.
The foreigner in England was commonly represented by the foreign king's ambassador. He had no duty of allegiance to the British crown and few rights.
A citizen was any person born to a citizen and to most denizens but never a foreigner.
Blackstone explained that the British Parliament, under Queen Anne or William and Mary, set a policy of easy citizenship to encourage commerce. The theory was encouraging commerce on British shores increased the wealth of the British Isles, so why discourage immigration.
It is significant in the modern context to note that during this era, there was no public welfare programs or other government handouts, other than by grants of land. Consequently, the incentives to move to England were limited to commercial gain for most foreigners.
These same types of policies were carried to the American colonies, so the British Parliament passed legislation to clarify when German immigrants to the colonies could naturalize and become British subjects.
It is at this point, my knowledge has a gap in need of filling. I have not studied the exact policies of the states on naturalization law from the Revolution to the Fourteenth Amendment. By generalized understanding is that the states varied widely. The Southern states refused to recognize blacks as citizens.
At this time there was still no public welfare programs of note. There was large scale immigration to fill the vast empty tracks of middle America.
The context of the Fourteenth Amendment, based on Blackstone's analysis, tends to suggest a mindset started in post-Glorious Revolution of encouraging immigration as means of encouraging commerce, which was logical in the vast colonial and newly formed American context.
Nowhere in the analysis does Blackstone suggest that there is natural right to citizenship by birth. He suggests a legislative history. The logical inference arising from that is that this history should inform us about what the Fourteenth Amendment's phrases mean. It should also suggest to us that legislation has always been important to determining who is entitled to citizenship. It is not fixed and immutable.
Since Blackstone shows that "subject to the jurisdiction" had specific meaning under Parliamentary legislation, the meaning could be changed by Parliamentary action. When the Parliament ceased having authority in American on July 4, 1776, and ratified by Parliament in 1783, American legislatures including Congress stepped into the gap. The Constitution then fixed this authority in Congress alone. The Congress has the right to amend the definition of who is subject to its jurisdiction. In the current environment, naturalized citizens have to take the oath of citizenship. The first statement is a renunciation of any dual loyalties to the jurisdiction of the new citizen's birth.
I cannot find any provision in the 8 US Code sec. 1001 et seq. that suggests that any limited oath of allegiance is required for any alien applying for permission to enter the US. How is someone who owes little allegiance to the US fully subject to the jurisdiction of the US? Once that person leaves the US, the US has no jurisdiction over the person except for rights of re-entry and whatever assets, debts, or obligations the alien left behind.
Is it enough for a legal alien to run up an unpaid mortgage on his home and leave the US to confer citizenship on his child born abroad? The alien is subject US jurisdiction in rem for the house and in personam for the deficiency judgment. Is that what the US Constitution would define as "subject to the jurisdiction" of the United States?
I highly doubt it. I would suspect though that a person subject to being drafted into the US military would be. A male, US citizen has to register with the Selective Service. A green-card alien has to register, too. A person who can be required to put his life on the line for the country (just like the king could demand of his subjects owing him allegiance) is truly fully subject to the jurisdiction of the country.
If that alien can abscond and avoid military service legally, can his child be automatically a US citizen?
Congress has defined citizenship. It is has defined citizenship by birth in the US Code, Title 8. The Fourteenth Amendment does not allow states to have separate definitions of citizenship or to consider a baby born in its borders and subject to the jurisdiction of the US as anything but a citizen.
Blackstone's category of denizen has little meaning in my limited study of American immigration law.
The question then become problematic. The old Ark and Slaughterhouse cases were decided before modern immigration law. Ark turned on a partial reading of Blackstone.
My concern here is persons who enter the US illegally. They are subject to the jurisdiction of the US in the context of criminal law and property ownership. This is similar to Blackstone's denizen. But a denizen presumably had not restriction on his entry into England. Is this a reasonable analogy to the US?
Should a person who commits a misdemeanor by entering the US without authority have the ability to pass citizen to his or her child because of the parent's criminal behavior?
Granting the privilege of being subject to US jurisdiction is Constitutional right reserved to Congress. Neither Supreme Court nor the illegal alien has the authority to change that. Only the Constitutional Amendment process can change it.
Parliament granted a generous definition of becoming subject to British jurisdiction and Congress can retract it. The question for courts is limited to whether a particular person is within the limits or outside of it as a matter of fact.
The Fourteenth Amendment does not give birthright citizenship to all on US soil, if born here only as a result of criminality. The history of these laws and logic simply do not allow such a conclusion.
