Constitution Check: Is natural-born citizenship sometimes not a fundamental right?
Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the current case of five American Samoa nationals who claim a constitutional right to natural-born United States citizenship.
THE STATEMENTS AT ISSUE:
“[This case asks] that we forcibly impose a compact of citizenship – with its concomitant rights, obligations, and implications for cultural identity – on a distinct and unincorporated territory of people, in the absence of evidence that a majority of the territory’s inhabitants endorse such a tie and where the territory’s democratically elected representatives actively oppose such a compact. We can envision little that is more anomalous, under modern standards, than the forcible imposition of citizenship against the majoritarian will.
– Excerpt from a decision by the U.S Court of Appeals for the District of Columbia Circuit in June rejecting the claim by five nationals of American Samoa that they have had a constitutional right, from birth, to U.S. citizenship. The Samoans on July 20 asked the full Circuit Court to reconsider that ruling and establish their citizenship. The case raises fundamental constitutional questions that may make it a candidate for Supreme Court review, including the continuing significance of a series of cases decided a century ago, now known as a group as the Insular Cases, on which the D.C. Circuit Court had heavily relied.
“The Insular Cases should not be considered [to be] authority for analyzing the Citizenship Clause [of the Fourteenth Amendment]….The Insular Cases’ approach to the constitutional status of the U.S. territories lacked any grounding in constitutional text, structure or history. They reflected the assumptions of the time that the United States, like the great European powers of that era, must (despite being constrained by a written Constitution) be capable of acquiring overseas possessions without admitting their ‘uncivilized’ and ‘savage’ inhabitants of ‘alien races’ to equal citizenship. That reasoning…has no place in modern jurisprudence.
– Excerpt from a legal brief filed in the D.C. Circuit Court by five professors of constitutional law and legal history, urging that court – unsuccessfully -- not to rely in the Samoans’ case on the Insular Cases as precedents.
WE CHECKED THE CONSTITUTION, AND…
About a century ago, in several decisions now collected as the Insular Cases, the Supreme Court declared that the Constitution does not necessarily follow the American flag. Those rulings stand for the general principle that not every constitutional right is necessarily extended to those who live in U.S. territories, beyond the mainland.
The rulings have lately come in for some sharp scholarly criticism, including a collection of essays based upon a conference at Harvard University (Reconsidering the Insular Cases) with a common theme, described by the publisher, that the rulings were “tinged with outmoded notions of race and empire.”
Those precedents, though, continue to show up in judicial opinions. The Supreme Court most recently discussed them seven years ago in the decision (Boumediene v. Bush) that gave war-on-terrorism suspects at Guantanamo Bay a right to challenge their continued imprisonment. The Justices only partly relied upon the precedents, using them as a kind of framework for examining how U.S. law applies abroad but ultimately finding them no barrier to extending the “writ of habeas corpus” to Guantanamo, given the U.S. military presence there.
But those old cases have gained a controversial new legal visibility as the key to a decision by a federal appeals court in Washington, D.C., declaring that the Fourteenth Amendment’s guarantee of birthright (natural born) citizenship does not extend to those who live in the Pacific archipelago of American Samoa, a U.S. territory.
This is what the Amendment says on the point: “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.” That language, the D.C. Circuit Court ruled, is ambiguous, so the words themselves do not define their scope. It ultimately concluded, though, that the clause does not reach to Samoa.
Congress, while conferring automatic citizenship on those who live in some other U.S. territories, has not done so for Samoa, despite years of lobbying by some Samoans for that. And the government of that territory, supported by the federal government, argued fervently in court that such a move should not be done by a court. Doing so, the opponents told the Circuit Court, would threaten to undermine the special “way of life” of Samoans, which is based on ancestral land rights and community living.
The Circuit Court accepted that the opposition of the territory’s elected leaders did speak for the people of Samoa, but it also relied on the Insular Cases to provide the analytical framework for judging when a clause in the Constitution would be applied to a territory. It conceded that “some aspects of the Insular Cases’ analysis may now be deemed politically incorrect,” but found that the approach taken then is “both applicable and of pragmatic use.”
What that court found most useful about the precedents’ approach was that it focused on “practical concerns, not formalism” in deciding what rights territories’ inhabitants should enjoy It concluded, based largely on the claims of the territory’s leaders, that a judicial decree conferring automatic citizenship on those born in Samoa would be impractical, given the way of life there.
The five Samoans who filed the case seeking “birthright citizenship” (some of whom live in the U.S. now or did previously) have now mounted an effort to get the June decision overturned by the full 11-judge D.C. Circuit Court. At a minimum, their just-filed rehearing plea said, the full court should take on the case and then order a searching factual inquiry in a trial court on just how applying citizenship to Samoans would affect them and life in the territory.
The Circuit Court ruling in June (by a three-judge panel), while conceding that citizenship does qualify as a “fundamental right,” misunderstood the nature of that right in the modern era, the rehearing petition contended.
When tribal leaders on Samoa gave up their sovereignty to the United States in 1900, the Samoans now contend, it was expected that this would lead to U.S. citizenship for their people. It is time for a court to make that happen, they added, because “the question of birthright citizenship is answered by the Citizenship Clause.” They are not content to have Congress or the island’s leaders decide what that means.
This case, Tuaua v. United States, is the kind of controversy, framed as it is as a basic inquiry into what the words of the Constitution stand for, that probably is best resolved by the Supreme Court. And, besides, it could provide a useful examination of whether the Insular Cases have survived into the 21st Century human rights era.