Immigration Article of the Day: The U.S. Constitution and Birthright Citizenship in the Unincorporated Territories by Nicholas Doehler
The U.S. Constitution and Birthright Citizenship in the Unincorporated Territories by Nicholas Doehler, Independent October 4, 2016
Abstract: This article re-examines the status of non-citizen nationals of the United States. In the Insular Cases of the early 1900s the U.S. Supreme Court determined that the Constitution did not provide birthright citizenship for persons born in “unincorporated territories,” which were territories they considered to be under the jurisdiction of but not part of the United States. Instead, persons born in those territories were deemed “non-citizen nationals” of the U.S. Since then Congress has legislated birthright citizenship for Guam, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands, but not for American Samoa. While arguments have been made that the territories have in fact been incorporated into the United States and therefore the Fourteenth Amendment’s citizenship clause, which guarantees citizenship for all persons born in and subject to the jurisdiction of the U.S., applies, I argue from a different perspective. Birthright citizenship does not derive from the Fourteenth Amendment but from the original Constitution. While citizenship is not defined in the Constitution, courts have determined that as a sovereign state, the U.S. had citizens and the rules for citizenship were to be found in English common law regarding subjects. English common law recognizes all persons born under the sovereignty of the state to be English subjects, regardless of whether or not they were born in the realm. As a result, anyone born in any territory under U.S. jurisdiction should be considered a citizen.
KJ