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Other Lands and Other Skies: Birthright Citizenship and Self-Government in Unincorporated Territories, 27 Wm William & Mary Bill of Rights Journal Volume 27 (2018-2019) Issue 2 Article 4 December 2018 Other Lands and Other Skies: Birthright Citizenship and Self- Government in Unincorporated Territories John Vlahoplus Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, Fourteenth Amendment Commons, and the Immigration Law Commons Repository Citation John Vlahoplus, Other Lands and Other Skies: Birthright Citizenship and Self-Government in Unincorporated Territories, 27 Wm. & Mary Bill Rts. J. 401 (2018), https://scholarship.law.wm.edu/wmborj/vol27/iss2/4 Copyright c 2018 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj OTHER LANDS AND OTHER SKIES: BIRTHRIGHT CITIZENSHIP AND SELF-GOVERNMENT IN UNINCORPORATED TERRITORIES John Vlahoplus* INTRODUCTION By denying certiorari in Tuaua v. United States,1 the U.S. Supreme Court de- clined to resolve the question whether the Constitution confers birthright citizenship on persons born subject to the jurisdiction of the United States in its unincorporated territories.2 Many believe that the question presents a fundamental conflict between individual rights and collective self-determination.3 Denying birthright constitutional citizenship discriminates against those born in unincorporated territories. It leaves their nationality to the grace of Congress, which can impose conditions precedent and subsequent to their attaining and retaining U.S. nationality.4 It extends the racist foundation of the Insular Cases5 beyond their express holdings.6 In particular, it dis- criminates against persons born in American Samoa who receive only non-citizen- ship nationality under federal statutory law, an intermediate status between citizens and aliens.7 Even when residing in one of the fifty states, they cannot serve as Rep- resentatives or Senators; they cannot serve as officers in the armed forces or in many federal jobs, including in the federal judiciary; and in many states, they cannot vote, * Member, New York State Bar. Thanks to the staff at the William & Mary Bill of Rights Journal for their editorial assistance. 1 788 F.3d 300 (D.C. Cir. 2015) (denying birthright constitutional citizenship to persons born in American Samoa), cert. denied, 136 S. Ct. 2461 (2016). 2 See Petition for Writ of Certiorari at I, 2–14, Tuaua, 788 F.3d at 300, No. 15-981 [here- inafter Pet. for Cert.]; see also American Samoa and the Citizenship Clause: A Study in Insular Cases Revisionism, 130 HARV. L. REV. 1680, 1683, 1685–86, 1702 (2017) [hereinafter Study]. 3 Study, supra note 2, at 1685. 4 See, e.g., Rogers v. Bellei, 401 U.S. 815 (1971) (upholding congressional authority to impose conditions subsequent on statutory citizenship conferred outside of the United States); Lisa Maria Perez, Note, Citizenship Denied: The Insular Cases and the Fourteenth Amendment, 94 VA. L. REV. 1029, 1068–71 (2008) (noting Justice Blackmun’s holding in Rogers “that the statutory citizenship of persons born abroad to U.S. citizen parents is not fundamentally ir- revocable and may be conditioned by Congress”). 5 For a summary of the Insular Cases prepared by the Editors, see the Appendix to this Article. 6 See Study, supra note 2, at 1693–94. 7 See Rose Cuison Villazor, American Nationals and Interstitial Citizenship, 85 FORDHAM L. REV. 1673, 1676 (2017); see also Immigration and Nationality Act §§ 101(a)(29), 308(1) (codified as amended at 8 U.S.C. §§ 1101(a)(29), 1408(1)). 401 402 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 27:401 bear arms, or hold public office or public-service positions.8 On the other hand, some fear that acknowledging birthright constitutional citizenship in unincorporated territories could undermine their self-determination by tightening equal protection constraints on their local governments.9 This Article argues that there is no fundamental conflict between birthright citizenship and self-government in unincorporated territories. English common law embodied in the original Constitution confers birthright citizenship and permits self- government there.10 England recognized the common-law rule knowing that it applied in remote territories and to “people not only alterius soli, but alterius coeli.”11 The extent to which American equal protection doctrine constrains local governments in unincorporated territories is a separate constitutional issue. This Article also shows that shortly after the ratification of the Fourteenth Amendment, Congress recognized that the common-law rule applied in the Oregon Country during its joint occupation with Britain, when it was self-governing and unincorporated under the later-invented standards of the Insular Cases.12 It was Oregon, not the territories acquired from Spain in 1898, that first required the United States to confront the limits of congressional authority over territories and to de- termine whether the nation would become a colonial power.13 Congress abjured colonialism and permitted self-government in the Oregon Country only to embrace colonialism later in the insular territories. This Article concludes by suggesting that the Oregon precedent of organic self-government combined with birthright Ameri- can citizenship provides a model for self-governing territories that are affiliated with the United States but are neither states nor colonies. Part I details the common-law rule of birthright citizenship and its application in unincorporated territories. Part II responds to the principal arguments against recog- nizing birthright citizenship there. Parts III to V present a short history of the Oregon Country, a federal district court decision finding that the Fourteenth Amendment is merely declaratory of the common-law rule that applied in Oregon in 1824, and Congress’s 1872 confirmation that the rule applied there during its joint occupation from 1818 to 1846. Parts VI and VII show that the Oregon Country was unincorpo- rated and explain why it, rather than the insular territories, first required Congress to confront the limits of its territorial authority and whether to become a colonial power. This Article concludes that the Oregon experience and the American application of 8 See Pet. for Cert., supra note 2, at 10–11. 9 See Study, supra note 2, at 1685. 10 Id. at 1696, 1698–99. 11 15 FRANCIS BACON, THE WORKS OF FRANCIS BACON 218 (James Spedding et al., eds., 1864). 12 See Appendix. 13 See Oregon History: Territorial Government, OR. SEC’Y ST., https://sos.oregon.gov /blue-book/Pages/facts/history/pre-territorial.aspx [https://perma.cc/U6PX-HDRP] (last visited Nov. 29, 2018). 2018] OTHER LANDS AND OTHER SKIES 403 the common-law rule of birthright citizenship allow a flexible combination of organic self-government and birthright American citizenship in U.S. territories. I. THE COMMON LAW AND CALVIN’S CASE The English common law provides the constitutional rule of birthright citizen- ship.14 The common-law rule is the jus soli (right of soil): natural-born subjects were those born within the dominions and ligeance of the King, consistent with the 1608 English decision in Calvin’s Case.15 Only two classes of persons born within the King’s dominions were born without his ligeance: those of foreign ambassadors, and those of hostile foreign occupying forces.16 Only one class of persons born without the King’s dominions were his natural born subjects: those of English ambassadors.17 The background, arguments and decision in Calvin’s Case are useful for understand- ing why the right of soil applies in unincorporated territories. 14 See Weedin v. Chin Bow, 274 U.S. 657, 660 (1927); United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898); Minor v. Happersett, 88 U.S. 162, 167–68 (1875). 15 Calvin’s Case (1608), 77 Eng. Rep. 377; 7 Co. Rep. 1a. See also 1 WILLIAM BLACKSTONE, COMMENTARIES *357; Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case (1608), 9 YALE J.L. & HUMAN. 73, 74 (1997). 16 See Wong Kim Ark, 169 U.S. at 657; U.K. GOV’T, British Nationality: Summary § 1.3.1, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/267 913/britnatsummary.pdf [https://perma.cc/F7A3-MYCD]. The U.K. government website does not identify the author of the summary, but the U.K. Home Office confirmed to the author that the summary reflects its understanding of the law. 17 See 12 Journal of the House of Lords: 1666–1675, at 86 (London, 1767–1830), http://www.british-history.ac.uk/lords-jrnl/vol12/pp86-87 [https://perma.cc/BY2C-R8CF]; BLACKSTONE, supra note 15, at 361; LAURIE FRANSMAN, FRANSMAN’S BRITISH NATIONALITY LAW 131 (3d ed. 2011). Foreign-born children of English parents in other crown service, such as serving soldiers, were not natural born. See De Geer v. Stone (1882) 22 Ch. D. 243 (Eng.) (rejecting arguments that the ambassador rule applied to serving soldiers and that British deriva- tive nationality statutes were declaratory of the common law); FRANSMAN, supra, at 132–33. Cf. An Act for the making free and to putt in the nature of mere Englisshmen certayne children begotten and born byyonde the Sea, (1541) 33 Hen. 8 c.25 (naturalizing, among others, the foreign-born child of an aide to Henry VIII who had gone beyond the sea “about the Kyng’s affayres”). The scope of the ambassador rule is uncertain. John Adams interpreted it to include children of the ambassador, of his family, and of any of his country men and women attached to the embassy. See Letter from John Adams to William Steuben Smith, NAT’L ARCHIVES (May 30, 1815), http://founders.archives.gov/documents/Adams/99-03-02-2874 [https://perma .cc/PU75-TMQM]. This Article refers to the ambassador generally without taking a position on the exception’s scope. Some consider children born on British ships to be natural born at common law.
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