Birthright citizenship

[Earl Maltz]

I have looked at the legislative history of the Citizenship Clause in
detail, and it is ambiguous on this point--not because there is no
evidence, but because the evidence is conflicting.

Here comes the shameless plug--for those of you who are interested in this
subject, it is covered in my book, The Fourteenth Amendment and the Law of
the Constitution, to be published next year by the Carolina Academic Press.

At 06:16 PM 11/4/2002 -0600, you wrote:
>I must have read the Slaughterhouse Cases two dozen times over the past
>decades.  But I suddenly read, preparing for tomorrow's class, as if for
>the first time, Miller's sentence "The phrase, 'subject to its
>jurisdiction' was intended to exclude from its [i.e., the citizenship
>clause of the 14th Amendment's] operation children of ministers, consuls,
>and citizens or subjects of foreign States born within the United States"
>(emphasis added).  Perhaps it's because I'm also teaching Plyler in my
>other course, but it does seem to me that the most plausible way of
>reading this sentence is support for the proposition that the
>Slaughterhouse majority did *not* believe in birthright citizenship for
>children of aliens.  Obviously, the Court ultimately rejects this, in Wong
>Kim Ark (I believe, over Harlan's dissent).  But I wonder if, say, Justice
>Thomas would feel bound to overrule such cases and return to the original
>understanding, at least if that is taken to be reflected in Miller's
>opinion.  (Of course, few political liberals believe either in original
>understanding or, more to the point, that Miller's opinion is an accurate
>guide to that understanding vis-a-vis incorporation of the Bill of
>Rights.  But I am curious about those people who *do* take Miller's
>opinion seriously as an authoritative construction of the Fourteenth
>Amendment.)
>
>sandy