21
Pp. 2-9.
TRUMP v. BARBARA
Syllabus
(1) Under the English common law, children “born within the [sov- ereign’s] dominions” owed a natural “allegiance” to the sovereign who protected them at birth, 1 W. Blackstone, Commentaries on the Laws of England 354, 356 (Blackstone), regardless of how “momentary and uncertain” their presence, Calvin’s Case, 7 Co. Rep. 1a, 6a, 77 Eng. Rep. 377, 384. Such children were therefore “natural-born subject[s].” Doe v. Jones, 4 T. R. 300, 308, 100 Eng. Rep. 1031, 1035. The same rule applied to children born of parents subject to expulsion. See, e.g., 4 Blackstone 166. The rule’s exceptions were narrow: children born in lands the sovereign did not control, children born in areas temporarily outside the sovereign’s control, and children of foreign ministers (by a fiction of extraterritoriality). Calvin’s Case, 7 Co. Rep., at 18a-18b, 77 Eng. Rep., at 399.
This common law of citizenship—known as jus soli, or right of the soil crossed the Atlantic and prevailed in “each and all of the states” after American independence. 2 J. Kent, Commentaries on American Law 39, n. a (Kent). The rule was applied even to the novel situation of quasi-sovereign Indian tribes, who maintained “dominion[s]” of their own such that Indians born under those dominions were not “cit- izens” but members of “alien and sovereign tribes.” Goodell v. Jackson ex dem. Smith, 20 Johns. 693, 714-715 (N. Y. Ct. Corr. Errors). In a Nation of immigrants, jus soli’s broad scope took on particular im- portance, assuring that children of foreigners—including those here on a “temporary sojourn,” Lynch v. Clarke, 1 Sand. Ch. 583, 638, 663–664 (N. Y. Ch.) would be American citizens by birth alone. Pp. 2–6.
(2) In Dred Scott v. Sandford, the Court departed from the com- mon law and adopted the view that blood, not soil, determined citizen- ship; it held that those descended from slaves could not be citizens. 19 How., at 419. The decision was met with shock, see D. Potter, The Impending Crisis, 1848–1861, p. 281; 3 Writings of Abraham Lincoln 55, and abolitionists swore to undo what the Court had done, see 2 Life and Writings of Frederick Douglass 259, 415, 424. Pp. 6–8.
(3) In the midst of the Civil War, Attorney General Edward Bates issued a landmark opinion citing key authorities, including Calvin’s Case and Kent’s Commentaries, rejecting the premise that “citizenship is ever hereditary,” and declaring that “every person born in the coun- try is, at the moment of birth, prima facie a citizen, without any reference to race or color.” 10 Op. Atty Gen. 382, 394, 399. The excep- tions were “few”-“the small and admitted class of the natural-born composed of the children of foreign ministers and the like.” Id., at 397. Following the war, Congress sought to turn Bates’s opinion into law by enacting the Civil Rights Act of 1866, which made citizens of “all persons born in the United States and not subject to any foreign power,
About The Author
