The Original Meaning of “Born … in the United States”
This post considers the original public meaning of the citizenship clause’s phrase “born … in the United States” (a more detailed discussion is in Part II.A. of my forthcoming article). As mentioned in my opening post, the question has particular importance to people born in American Samoa, a U.S. territory not currently considered “in the United States” for citizenship purposes. And it may have broader implications for an insidious group of Supreme Court cases.
I’ll begin with a word about methodology. I use an “original meaning” approach, a common (though not universal) method among originalists that traces its modern lineage to Justice Scalia. The idea is to ask what the words of the relevant constitutional phrase meant in legal communication around the time of the enactment. It’s not primarily concerned with the intent of the drafters or ratifiers, although what the drafters and ratifiers said or assumed about their language may be evidence of its common meaning. In particular, pre-enactment uses of the language may be especially important to show a phrase’s linguistic context. (There’s more on my approach here).
What can we discover about the nineteenth-century view of what was “in the United States”? One might suppose that the phrase could refer only to states admitted to the union (literally the states that are united). But that’s not how writers of the time, and particularly courts, understood it. Chief Justice Marshall considered the matter directly in Loughborough v. Blake (1820), concluding: “[The United States] is the name given to our great republic, which is composed of States and territories. The district of Columbia, or the territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania.” And in Cross v. Harrison (1853), the Court observed that “[b]y the ratifications of the treaty [of Guadalupe Hidalgo ending the Mexican War], California became a part of the United States.”
What, then, was not in the United States? The Court considered this question in another post-Mexican War case, Fleming v. Page (1850). The question was whether the Mexican city of Tampico, while under U.S. military occupation during the war, was part of the United States. The Court held it was not. Although the occupation placed Tampico under U.S. “sovereignty and dominion,” that status was o
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