Recently, the Supreme Court decided the case Trump v. CASA. This is a case that was about birthright citizenship without actually being about birthright citizenship. Essentially, after Trump's executive order declaring that children born in the United States of illegal or temporary immigrants are not entitled to automatic citizenship of the United States, various people or organizations or even states sued over it, and various universal injunctions were granted (a universal injunction is a ruling stating that the law in question could not be enforced not only against the parties involved, but everyone). Universal injunctions have been controversial given it effectively allows one judge to block a law for the entire country, and the case that went to the Supreme Court was about whether lower courts could grant such universal injunctions.
This post is not about that, however, but the underlying birthright citizenship issue. For those curious on the question of universal injunctions, though, I would say I am inclined towards the decision the Supreme Court gave (which was not quite a strict "no" but certainly curtailed the practice). However, the question of the constitutionality of the Executive Order was not ruled upon by the Court in that case, though most likely it will at some point in the future.
For a recap on that issue: The Citizenship Clause of the Fourteenth Amendment declares "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." In the case United States v. Wong Kim Ark, a question came about whether a man born in the United States to non-American-citizen Chinese was a citizen of the United States under this, and they ruled he was. Some have asserted that this decision only applies to children of lawful permanent residents, however, hence the recent Executive Order that declared children of illegal or temporary immigrants were not citizens under this (a few go even farther and claim that the decision was outright wrong and children of non-citizens, even if they are permanent legal immigrants, do not gain citizenship under the Citizenship Clause--but the Executive Order did not go that far).
This more limited idea of birthright citizenship has been criticized by various legal scholars of both conservative and liberal persuasions, who say that the Fourteenth Amendment grants citizenship to everyone born in the United States outside of children of Native Americans, those with diplomatic immunity, or foreign occupying armies. Some articles arguing this can be found here, here, and here. I myself have written some past posts on the subject here and here.
As Trump v. Casa was ultimately not about birthright citizenship, the decision didn't really touch on that at all. However, some of the amicus briefs did. An amicus brief, if you are unaware, are filings in a court case by people other than the parties involved. They are common in Supreme Court cases where a group or individual wants to make an argument to the court without being the plaintiff/prosecutor or respondent/defendant. SCOTUSBlog is a convenient place to find amicus briefs for a case; if you go to their page on the case and scroll down, you can find them all listed. In the case of Trump v. CASA, the amicus briefs for the case can be found conveniently here.
As noted, most of the amicus briefs were about the question presented in the case, that of the universal injunctions. However some filed amicus briefs either partially or entirely treating on the question of birthright citizenship, arguing for or against the constitutionality of the executive order. So, for example, the Scholars of Constitutional Law of Immigration filed one arguing the executive order was unconstitutional, and the Claremont Institute's Center for Constitutional Jurispudence filed one arguing it was (there were others who filed on either side, I'm just giving examples). It is the one of the Claremont Institute's Center for Constitutional Jurispudence, however, that interests me, as John Eastman is listed as the counsel in it, so he obviously had a strong, and perhaps exclusive, hand in its writing. I will therefore be referring to Eastman as the writer.
Before he was disbarred for his conduct regarding the 2020 election and largely considered disgraced, John Eastman well known for being a major advocate of a narrow interpretation of the Citizenship Clause, and he's been filing amicus briefs for this for decades at this point (going back to at least the 2004 Hamdi v. Rumsfeld decision), even before it became a political flashpoint. However, there have been plenty of people who have criticized him or his ideas, as one can see in the essays linked to several paragraphs ago. I was therefore curious: Had he improved the arguments his arguments in order to respond to the various criticisms? I had read some of his earlier writings and was unimpressed, but thought I should see the most up to date writing of his on the topic, which would be this amicus brief, and see if he had improved his arguments by addressing criticisms of them.
Now, at this point someone might be asking why I'm posting this at all. Trump v. CASA was decided several months ago. The Supreme Court will almost certainly get around to deciding the birthright citizenship question eventually anyway--at the time of this posting, they are considering an appeal to decide the issue--so what does an examination of this one particular amicus brief accomplish? Well, the truth is I wrote most of this back when it was somewhat more relevant, but then it kind of fell aside. I decided that since I did put some work into this and would prefer to not see it go to waste, and it might be of use to someone, I might as well post it. So I went through the remainder of the brief I hadn't yet covered (I'll mention when we switch over to that), albeit more in brief, and am now posting it.
So, after that probably too lengthy opening, we'll take a look at the amicus brief. The opening of his amicus brief asserts that the Supreme Court "never held that the Fourteenth Amendment compels the grant of citizenship to children born in the United States to parents who are merely temporary visitors or unlawfully present." This is a common assertion among those who wish to restrict birthright citizenship, who claim that while the dicta in the decision may indicate such a thing, the actual decision itself did not.
The problem here is that normally when something is regarded as mere "dicta", it is regarding things that were not particularly important to the case, such as some kind of aside note. But the "dicta" in this case essentially was the whole reasoning for the decision. We are not talking about a side paragraph, but the rationale. Thus Eastman's repeated appeals to the decision's rationale as simply being "non-binding dicta" are rather weak. Eastman does attempt to argue that the question of "domicile" was foundational to the decision, but all he is really able to come up with is the fact it was mentioned in the question presented and the word being frequently used.
The mention of domicile, which is interpreted by Eastman as legal permanent residence, is indeed found in the question that Wong Kim Ark said it is deciding. From the opinion:
"The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "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.""
However, if we were to restrict the decision's conclusion to simply to this question and nothing else, then we would come to the illogical conclusion that while children of such Chinese parents would be citizens, the Court did not decide the issue for those whose parents were Japanese, Canadian, Mexican, Spanish, German, or any other country on Earth beyond China, and they might be disqualified. In fact, the mention of the Chinese Emperor would mean it stopped being effective after the Chinese Emperor was overthrown. This does not make any sense.
Perhaps realizing this, Eastman tries to claim the decision really focused on the mention of domicile. Thus he tries the following claim:
The terms “domicile,” “domiciled,” “permanent domicile,” and “domiciled residents” appear nearly thirty times throughout the majority and dissenting opinions, underscoring the centrality of lawful, permanent residence for the court's reasoning.
The simple number of times a word is used means little by itself. If domicile was actually that critical to the decision, Eastman would be presumably quoting to more specific points
where it was actually stressed as important instead of trying to play a numbers game. I should note that the word "Chinese" is used more than forty times in the decision and dissent, even
more times than Eastman's reference to domicile, but it would be absurd to claim that this does not mean it
cannot apply to those of descents other than Chinese.
Next Eastman offers the following claim:
Respondents attempt to bolster their theory of automatic birthright citizenship by citing a patchwork of historical sources ranging from early Supreme Court cases to fragments of congressional debates and isolated comments from later decisions.
I find this ironic, for critics would say this is exactly what Eastman does.
Following this, Eastman does try to take issue with some of the cases that the respondent (CASA) uses. I actually would agree that some of the cases cited by CASA are a bit weak. Murray v. The Schooner Charming Betsy is a particularly weak appeal. Lynch v. Clark is more valuable, but by itself does not mean much.
Eastman then brings up a common appeal to discussions on the 1866 Civil Rights Act. The 1866 Civil Rights Act stated:
"...all 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."
The Citizenship Clause of the 14th Amendment substituted this with, as noted:
"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."
As we see, "not subject to any foreign power, excluding Indians not taxed" was changed to "subject to the jurisdiction thereof." Various statements by those involved with the Amendment indicated that despite the different wording, the Citizenship Clause was intended to put into the Constitution what was in the 1866 Civil Rights Act. Therefore, quotes are offered allegedly showing that the 1866 Civil Rights Act was to be read narrowly, and therefore also the Citizenship Clause. So, Eastman offers the following quote:
Representative John Bingham, explaining the 1866 Act’s language, clarified that it applied to those “born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty.” Cong. Globe, 39th Cong., 1st Sess. at 1291 (statement of Rep. Bingham). Senator Lyman Trumbull, the Act’s sponsor, repeatedly echoed this, stating the goal was “to make citizens of everybody born in the United States who owe allegiance to the United States.” Cong. Globe, 39th Cong., 1st Sess. at 572 (statement of Sen. Trumbull); see also id. at 527.At first glance, this looks powerful, but we run into problems.
The much-made-of statement by Bingham of "born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty" has several issues. First, if by "owing allegiance to any foreign sovereignty" he is referring to more specifically diplomats, who most assuredly owe allegiance in a manner that an immigrant does not (hence why they are exempt from laws), then any issue disappears.
Even if we were to suppose there is still an allegiance owed to the foreign sovereignty by immigrants while they are in the United States, to say this was Bingham "clarifying" the matter is an odd one. He was not asked about it, and in fact only mentions it briefly; his main discussion is other matters (he is talking about the importance of safeguarding the rights of citizens), and in regards to the issue of birth citizenship, he simply says he does not have any disagreement with that part of it, and gives the above statement. This was a brief comment that was not his point, and thus may have been stated imprecisely.
As for Trumbull, he was indeed the act's sponsor, so his statements are of more weight than Bingham's. The problem is that Trumbull explicitly states, in a statement that was a clarification, that children born of foreigners would be citizens:
"Mr. COWAN. I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?
Mr. TRUMBULL. Undoubtedly."
This is found on page 498 of the 39th Congress, First Session (January 30, 1866) of the Congressional Globe. Unlike Bingham's brief comment that was not stated as a clarification, this was a direct clarification to the question, and says that it will naturalize children of foreigners like Chinese or Gypsies (and before anyone tries to claim maybe they're talking about Chinese/Gypsies who were citizens, Chinese were not even able to naturalize as citizens until much later on).
Now, the argument that could be raised is that such people were permanent residents and that changes it, but then that means these citations are useless. If the claim is that because someone is still a citizen of a foreign country and not the United States, they therefore owe allegiance to a foreign sovereignty, this would still be the case even whether they were permanent resident or not, and whether they were in the US legally or not. What, precisely, is the "allegiance" to their home country that a temporary or illegal resident has or owes but a permanent resident does not? This question appears to go unanswered.
Next we come to the issue of the Justice Story citation, which Eastman claims the respondents misread him as "implying that Story meant that the general rule of jus soli, rather than the exception for temporary sojourners, was what was nearly universally established." I personally would not cite Story's statement as evidence of birthright citizenship, but Eastman appears to mischaracterize CASA's idea. The ones arguing for Trump's position were the one who brought up Story to begin with, trying to assert that it went against birthright citizenship, and CASA simply responded that that's not what Story was saying.
Let's review how the exchange went. First, in the initial appeal to the Supreme Court, Trump (or rather, the lawyers representing him) claims:
"And Justice Story recognized a “reasonable qualification” to birthright citizenship for “the children of parents, who were in itinere in the country, or abiding there for temporary purposes, as for health, or occasional business.” Joseph Story, Commentaries on the Conflict of Laws § 48, at 48 (1834)."
This is a quotation I discussed in an earlier post on the subject. To briefly summarize, Story was not making a formal statement in a court opinion, he was not even clearly referring to the Constitution, his "reasonable qualification" is a statement of should rather than is, and his very next sentence is "It would be difficult, however, to assert, that in the present state of public law such a qualification is universally established."
CASA then responds to the specific Story citation with:
"The government also invokes Justice Story’s conflict of law treatise, which proposes denying citizenship to the children of temporary visitors. Appl. 8. But in the very next sentence, Justice Story candidly concedes that “[i]t would be difficult, however, to assert, that in the present state of public law such a qualification is universally established.” Joseph Story, Commentaries on the Conflict of Laws § 48, at 48 (1834). No matter what was happening abroad, U.S. law remained firmly rooted in jus soli."
CASA was not trying to use Joseph Story to prove the US was following citizenship based on place of birth; it was simply responding to Trump's characterization of his statements. So Eastman's declaration that "Respondents’ reliance on Story’s remark concerning the contemporary state of public law to support near-automatic jus soli ignores the fundamental direction and principles of his analysis regarding American citizenship" is simply assigning more importance to it than they actually did. (the final sentence of the quoted paragraph might suggest otherwise, but it is more in reference to the things preceding) Eastman claims that Story's statement that such a qualification is not universally established is Story saying that it's the case in the US and it's the rest of the world where it's not universally established--but this is simply speculative on his part. Given its ambiguity, I don't think Story's comment is evidence for or against birthright citizenship in the United States, and in fact is downright irrelevant.
Eastman next turns his attention to the Cowan/Conness exchange from the ratification debate, and ironically his entire argument here--that they were trying to distinguish sojourners from permanent residents--ends up gutting his actual position. First, though, here's the argument:
In an attempt to politically derail the Fourteenth Amendment, Senator Cowan asked whether it would extend citizenship to the children of Chinese immigrants and Gypsies, and he specifically asked whether, under the proposed Citizenship Clause, they were to have “more rights than sojourners.” See Cong. Globe, 39th Cong., 1st Sess. at 2890-91 (statements of Sens. Cowan and Conness). Senator Cowan’s question, distinguishing children born to Chinese immigrants and Gypsies from “sojourners,” necessarily presumes that the children of mere sojourners would not be entitled to automatic citizenship. Senator Conness’s response, therefore, also necessarily only applies to Chinese immigrants and Gypsies who were not mere sojourners. As this is the only reference to “sojourners” in the entire debate, the distinction drawn by Senator Cowan and apparently embraced by Senator Conness is extremely important, and it fully supports the provision in President Trump’s executive order acknowledging that the Fourteenth Amendment does not confer citizenship on the children born to temporary visitors.
Eastman's position, as he has made clear in other writings and repeated in the amicus brief ("Amicus contends that Justice Fuller’s dissenting opinion in the case accurately reflects the original understanding of the Citizenship Clause"), is that Wong Kim Ark was wrong, and that children of non-citizens born in the United States, even if they are here lawfully and permanently, do not gain birthright citizenship. In other words, he would contend that the executive order doesn't go far enough. But despite having that position, here he apparently has to acknowledge that children of at least some non-citizen immigrants had birthright citizenship given what Cowan and Conness were saying. So the argument he just made, if true, actually seems to disprove the position he holds.
However, if we ignore that and simply focus on whether this provides support for the distinction between permanent residents and temporary or illegal residents, it still doesn't make much sense. Let's look at Cowan's emphasized statement of sojourners:
"Mr. COWAN. The honorable Senator from Michigan has given this subject, I have no doubt, a good deal of his attention, and I am really desirous to have a legal definition of "citizenship of the United States." What does it mean? What is its length and breadth? I would be glad if the honorable Senator, in good earnest would favor us with some such definition. Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they? Have they any more rights than a sojourner in the United States? If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. You cannot murder him with impunity. It is murder to kill him, the same as it is to kill another man. You cannot commit an assault and battery on him, I apprehend. He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word."
Now, it is difficult to know for sure how much of this is a legitimate desire to have answers and how much is him asking rhetorical questions, but it is obvious what Cowan is actually doing with his "Have they any more rights than a sojourner in the United States?" is asking whether these children who are citizens at birth would have more rights than, well, a sojourner. Eastman tries to frame it as Cowan offering a distinction between the children of a Chinese immigrant and the children of a sojourner, but Cowan says nothing of the sort. He is simply asking whether they have more rights than a non-citizen immigrant.
Eastman then offers this claim:
Senators Trumbull and Howard reaffirmed that the phrase “subject to the jurisdiction thereof” imposed a requirement of “complete jurisdiction” and undivided allegiance, thereby excluding children whose parents owed allegiance to a foreign power. See id. at 2893 (statement of Sen. Trumbull); id. at 2895 (statement of Sen. Howard).
Let's see these statements in better context.
"Mr. TRUMBULL. Of course my opinion is not any better than that of any other member of the Senate; but it
is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision
is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means
"subject to the complete jurisdiction thereof." Now, does the Senator from Wisconsin pretend to say that the
Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the
jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. Can you sue a
Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no
means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would
not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from
Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in
that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it
by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get
control of those people."
The underlined are the statements being appealed to. In the first place, we should note everything under discussion is the Native Americans, not immigrants. The two are rather different. The Native Americans had their reservations which were under their laws, not that of the United States (this changed later when the US started passing laws applying to their territories, but this was after the Fourteenth Amendment was passed). An immigrant, on the other hand, is inherently in the regular portion of the United States, unless they are visiting a reservation.
In regards to Trumbull's statement, the "subject to complete jurisdiction" is of little importance; it would simply mean subject to the complete laws of the United States, which immigrants are (diplomats and Native Americans on their reservations, however, are not). The "not owing allegiance to anybody else" is a better thing for him to point to, but it has issues. Again, if "owing allegiance" to someone else meant an immigrant still owed allegiance to their home country, then the argument raised of a distinction between temporary and permanent residents would seem to have no impact. One could make a slightly more plausible argument about illegal immigrants, but they nevertheless owe loyalty to the United States (even if they do not show it) which is exactly why they can be charged for crimes, unlike an ambassador. Further, as Michael Ramsey notes in his article "Originalism and Brithright Citizenship" (page 449), which is one of the essays I linked to early on, any footnotes omitted:
"Second, in the argument over the Clause’s application to Native Americans, Senator Trumbull stated: “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else.” This language can be read to exclude aliens’ U.S.-born children (who often would also owe allegiance to the country of their parents’ nationality). But Trumbull likely spoke imprecisely, meaning instead (as he also said repeatedly) those over whom the United States did not have “complete” jurisdiction, as the full context of his comment indicates:
"The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin [Doolittle] pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else.
. . .
. . . It is only those persons who come completely within our jurisdiction, who
are subject to our laws, that we think of making citizens . . . .""
Moving on, Eastman complains about the respondents relying on dicta from some cases. He is not without a point that the statements appealed to appear to have been passing statements by the Supreme Court, rather than the actual reasoning for the decision. Still, even if not precedent, dicta at least shows what the Supreme Court thought, and is not worthless. Though it strikes me as inconsistent that despite his dismissal of such things as dicta, he will later in the Slaughter-House Cases appeal to what he acknowledges is dicta!
The initial discussion of common law is not of great importance to us. It is true that the American Revolution did reject some elements of the idea of the common law, including natural-born subjectship, but this does not mean they wholesale abandoned every idea of Britain.
Indeed, James Madison rather notably said that location, not parentage, was what primarily controlled in the United States. While this isn't necessarily of much relevance to the Citizenship Clause, as he said it long before its passage, this specific idea of common law, of citizenship by location rather than parentage, was clearly not abandoned wholesale.
Now, this was the point where I originally stopped the examination and put it aside, but I don't want to leave the rest of it completely unremarked on, so I'll make some brief comments on the rest.
He appeals, as people of his position often do, to the claim that the Civil Rights Act of 1866 disqualified children of non-citizens and that the Citizenship Clause, which was supposed to do the same thing as the Civil Rights Act in this area, would therefore follow that. Eastman does not, however, mention these rather important quotes. Again from Ramsey's article, going into further detail on a point I myself brought up earlier in this blog post:
"Third, even if one accepts a need to align the Act and the Amendment, it is not clear that it should be done by reading the Amendment narrowly. To the contrary, it appears that the Act’s drafters understood it, like the Amendment, to include U.S.-born children of aliens. Senator Trumbull introduced what became the Act’s Citizenship Clause (with the “not subject to any foreign power” language), leading to the following exchange:
"Mr. COWAN. I will ask whether [Trumbull’s proposal] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?
Mr. TRUMBULL. Undoubtedly.231
Cowan then argued at length (in expressly racist terms) against adopting Trumbull’s proposed language.232 Trumbull repeated his understanding later in the debate:
I have already said that in my opinion birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States, and that the bill now under consideration is but declaratory of what the law now is; but, inasmuch as some persons deny this, I thought it advisable to declare it in terms in the statute itself.233
No one was recorded disputing the effect of Trumbull’s proposal; the question the Senators debated was whether it was a good idea.234 Thus it appears that when Senators said that the Amendment had the same effect as the Act, they took a broad view of the Act (rather than a narrow view of the Amendment)."
One can look at his article if you want to see the footnotes. Anyway, next Eastman tries to offer some quotes from Senators Trumbull, Howard, and Johnson that he claims "leave no room for doubt" that subject to the jurisdiction thereof is different from the jurisdiction that requires aliens and visitors to obey laws. I would say there is plenty of room for doubt. Ramsey discusses these quotes on pages 449-451 of his article and there is little for me to add. I considered repeating his statements here as I did above, but it was a lot and I didn't want to be copying too much.
After that Eastman moves to The Slaughter-House Cases, where the Supreme Court said in the majority opinion that "The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States." Eastman admits this is dicta (it really had no relevance to the actual case), but appeals to it on the basis that it is the "this Court's earliest interpretations of the Citizenship Clause". The problem is that The Slaughter-House Cases was a close 5-4 decision. That means a sizable portion of the Court never joined this statement. I know that for the purposes of precedent it doesn't matter whether a decision was 5-4 or 9-0, but as precedent this statement was dismissed by United States v. Wong Kim Ark (which correctly noted that the statement "was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities"). So its precedential value at this point is zero. If, however, the argument is to try to use it to show what people understood it to mean at the time, it does not work well either because again only 55% of the Court signed onto the majority opinion--and this is not getting into the fact that the majority in The Slaughterhouse Cases has come under various criticisms from both liberals and conservatives.
Eastman's appeal to Elk v. Wilkins is completely inadequate, consisting if only one paragraph. Elk v. Wilkins is one of the most argued-over cases in regards to this. Can he not respond to any of the rebuttals that have been brought up? Indeed, Michael Ramsey cites Elk v. Wilkins as evidence against Eastman's position (see page 455 of his article).
Eastman's appeal to Cooley is answered quite directly by Ramsey on pages 457-458:
"Professor Eastman points in particular to the statement in Thomas Cooley’s constitutional law treatise that “subject to the jurisdiction” in the Fourteenth Amendment “meant that full and complete jurisdiction to which citizens generally are subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.” THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 243 (Boston, Little, Brown & Co. 1880); see Eastman, supra note 7, at 174 (relying on this quote as disproving constitutional citizenship for the U.S.-born children of aliens). Cooley’s statement in context is ambiguous, however; he went on to discuss Native American tribes (and, in the third edition, children of foreign sovereigns and ambassadors, children born on foreign ships, and children born under hostile occupation) as being excluded by the “subject to the jurisdiction” requirement; he did not mention other potentially excluded categories, such as children of aliens. See COOLEY, supra; THOMAS M. COOLEY & ANDREW C. MCLAUGHLIN, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 270 (Boston, Little, Brown, & Co. 3d ed. 1898). The categories Cooley specifically mentioned were not analogous to U.S.-born children of aliens in this respect, so it is not clear what Cooley thought of the latter. In any event, what Cooley—a respected but fallible authority—thought years after ratification is not definitive."
Eastman appeals to statements from the Secretary of States Frelinghuysen (1880's) and Bayard (1890's) as evidence of early understanding agreeing with Eastman's own views... but ignores the fact that, as Ramsey points out on page 420, in the 1870's, closer to ratification than either of those, Secretary of State Hamilton Fish took a more expansive view, which Eastman does not address.
The Indian Citizenship Act mention is of little consequence; those who take the more expansionist view of the Citizenship Clause agree that the Native Americans were not included under the Citizenship Clause anyway. To be fair, Eastman appears to be trying to take issue specifically with remarks from the Respondent.
Eastman does come to a more interesting argument, which is to note how various Mexicans, of which he claims about 1.2 million were born in the United States, were repatriated back to Mexico after the stock market crash in 1929. Eastman declares " Yet to our knowledge, not a single case was ever brought at the time claiming that the children born in the United States to those who had come as temporary workers in the “Roaring Twenties” and who retained their Mexican citizenship could not be removed because they were citizens. Such silence is deafening."
While an interesting argument I have not seen before, there are multiple reasons why this argument of Eastman fails. First, this occurred after Wong Kim Ark. Eastman may disagree with that decision, but it happened. But even under the more narrow interpretation claimed--that it applied only to legal permanent residents--it appears to me the Mexicans in question would count under that. Eastman appears to offer no argument as to why they would not. So Eastman trying to appeal to this to show that people accepted his viewpoint is immediately dubious because we are not talking about temporary or illegal immigrants, but ones who were here on a more permanent basis prior to them being kicked out.
More plausibly, the reason few (or perhaps none) of those born in the US fought the issue in court is the fact that the children were too young to have any desire to. Even if the children had a legal claim, their parents did not, so what were they supposed to do, remain in the United States without any guardians? Of course they would go where their parents went.
I will admit that this is a part of history I'm very far from an expert on. But it still seems to me that in the end, this cannot be considered evidence for Eastman's claim because it appears they would most certainly have qualified under even the "legal permanent residents only" interpretation of Wong Kim Ark. Whatever reasons they may have had for not challenging it (it being far simpler to go with their parents, lack of legal knowledge, etc.), this does not appear to support his claims.
The argument about passports I don't know enough about to really offer an analysis, but requiring a disclosure of more than just place of birth could have simply been a bureaucratic redundancy.
So I don't think Eastman's arguments here are particularly good. Too many fall apart and he ignores counterarguments; he has been trying to make this argument for quite some time, he can hardly be unaware of them. And ironically, while arguing for a restrictive reading of Wong Kim Ark, his own arguments end up refuting his actual position (that Wong Kim Ark was wrong to begin with). In some fairness, as what this case was about more specifically was the question of universal injunctions, so maybe this wasn't the time to get into too much depth on some of these things. Still, as a point of argumentation it fails considerably in my view, and he really does not properly address many of the criticisms that have been aimed at his viewpoint or his arguments.
And that reaches the end. I don't know if anyone got much out of this, given this was all about an amicus brief in a case that's over and I rushed towards the end, but this would become even more irrelevant if I waited longer to post it. Maybe I'll have more to say after the Supreme Court actually ends up taking up the issue (no doubt Eastman will file another amicus brief on it). In the end, hopefully someone got something out of this post. If this is of use to even just one person, then I suppose it will have served its purpose.
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