Constitution Daily

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Constitutional Check: Will the Supreme Court clarify birthright citizenship?

December 15, 2015 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a petition on its way to the Supreme about birthright citizenship for American Samoans.


“This case presents the important constitutional question whether the Citizenship Clause of the Fourteenth Amendment permits Congress to deny birthright citizenship to U.S. nationals born in American Samoa, a U.S. territory since 1900….At stake is the meaning of a core constitutional provision, central to the Reconstruction Amendments, that sets the boundaries of one of the most basic constitutional rights: citizenship, on which many other rights are premised.”

 – Excerpt from a filing on Monday in the Supreme Court, notifying the Justices that five individuals who were born in American Samoa will be filing an appeal to make their claim of a fundamental right to U.S. citizenship. The case will be a challenge to a federal appeals court ruling last June, denying the claim and finding that political leaders in the territory do not support that idea, thus giving them a veto power over the meaning of the phrase, “birthright citizenship.”


 Of all the places where the American flag flies over a part of the United States, the individuals living under that flag and who pledge their allegiance to their government are treated as U.S. citizens – except in American Samoa, an archipelago in the South Pacific that lies between Hawaii and New Zealand.  Congress has singled them out for the role of “U.S. national,” not as citizen.

For years, the concept of citizenship as a privilege of birth within the United States has gone largely unexamined.  But in the overheated rhetoric of the run-up to next year’s presidential election, some of the candidates have openly questioned that idea, and have mounted arguments to limit the reach of this wording in the Fourteenth Amendment: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States…”

Those words were added to the Constitution with the specific aim of overturning the Supreme Court’s decision in the Dred Scott case, denying rights of citizenship (indeed, any rights) to former slaves.

A lingering question about this privilege is whether it confers a “fundamental right,” as do other rights guaranteed in the Constitution.  If it does qualify as fundamental, birthright citizenship could not be denied by government unless that was necessary to achieve a very important government interest, and the denial of the right was the least restrictive way to achieve that government interest.

Link (Previous Story): Constitution Check: Is natural-born citizenship sometimes not a fundamental right?

The problem for “birthright citizenship,” however, is that it has long been understood to be something within the power of Congress to grant or deny.  Congress over the decades has been quite generous about it, extending the right of citizenship, for example, to the people of Puerto Rico.   But the people in American Samoa continue to be left out of the pantheon of American citizenship.

Efforts to persuade Congress to include island-born Samoans as eligible for citizenship have been fruitless.   And that has led – as such frustrations so often do – to an attempt to win by a lawsuit what cannot be gained by legislation.  An activist group, the Samoan Federation of America, has joined with five Samoans in pressing a lawsuit to win citizenship.  So far, that, too, has met with frustration.

Most recently, that legal initiative was turned aside by a federal appeals court in Washington, concluding that citizenship does not qualify as a fundamental right, and so it remains to Congress to discern the wishes of the people of the territory and to decide for or against citizenship for the residents.

In October, a plea to reconsider that decision also was rejected.  That left, legally, but one option to pursue: the Supreme Court.  On Monday, lawyers for the Samoans asked the Supreme Court to provide an additional month for them to file their appeal on the issue.

The reason for such a request reveals what could be a very considerable gain for their cause.  They have just enlisted a new lawyer to take their case to the Justices, and that lawyer is a very busy one who needs some more time to prepare the case properly.

That attorney is Theodore B. Olson, a highly skilled courtroom advocate who has often been identified with conservative political causes, but who made a major contribution to the acceleration of the fight over same-sex marriage by leading the challenge to California’s ban on such marriages, Proposition 8.   That was not the case that ultimately led to victory in the Supreme Court last June, but Olson and his team were widely credited with having raised the public visibility of the cause and helping to demonstrate that same-sex marriage, if established, would not bring the end of the American Republic.

It is not always essential to a legal campaign, of course, that it be led by a prominent attorney with a national reputation.  But the courtroom record of an advocate like that fills such a campaign with confidence, and, often, that confidence turns out to be justified.

Of course, the central focus of Olson’s effort will be the individual Samoans who wish for the noble rank of U.S. citizen.  He already demonstrated that in the brief application he filed to gain some time to prepare the case for filing.

But that document also revealed that Olson will be pursuing another legal cause: the effort to put a series of old Supreme Court decisions into the dustbin of history, as relics of an age of American colonialism and race superiority.   The so-called “Insular Cases” were a series of rulings in the early 1900s limiting the reach of the Constitution to America’s territories, beyond the borders of the nation.

Scholars of law and history have grown increasingly critical of that series of rulings, and have been hoping for a proper test case to challenge them.  Attorney Olson has already made clear that they will be a target of the Samoans’ lawsuit, telling the Justices in his filing on Monday that the federal appeals court in Washington was wrong to rely upon the “framework” of the Insular Cases in finding that citizenship for the Samonas was not a fundamental right.

The Justices have already indicated, by taking on two new cases on the nature of the territory of Puerto Rico, that they are newly sensitive to what happens in America’s offshore territories. It could be that they will also welcome a chance to reexamine the Insular Cases in a modern context.

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