On December 12, Federal District Court Judge Clark Waddoups of Utah ruled in Fitisemanu v. U.S. that individuals born in American Samoa are entitled to birthright citizenship. This case invalidates a longstanding congressional law that has defined American Samoans as nationals. Even more importantly, it pits against each other two crucial lines of doctrine dating more than one hundred years. The victor in this battle, United States v. Wong Kim Ark (1898), is the celebrated but currently controversial case that establishes birthright citizenship for almost all individuals born in the United States. The loser is Downes v. Bidwell, a 1901 ruling that was the first in a series commonly known as the Insular Cases, which placed American territories and their inhabitants in a different and lesser constitutional category than states and their citizens. The ruling, which has been stayed pending appeal, sets the stage for a reconsideration of both American citizenship and the legacy of imperialism.
The controversy over birthright citizenship
President Trump and his advisors have made no secret of their dislike for the principle that all individuals born in the United States are automatically citizens. Both Trump’s own tweets and the statements of Acting Immigration Director Ken Cuccinelli have generated substantial controversy over the administration’s position that birthright citizenship can possibly be altered through executive order. As I and others have noted, another debate has erupted over whether Congress can alter birthright citizenship or if, alternatively, the longstanding presumption that the Fourteenth Amendment establishes an irrevocable constitutional baseline remains viable.
This ruling is likely to stir up more controversy around these questions, as well as about the Insular Cases, which Puerto Rican advocates have recently asked the Supreme Court to reconsider.
The Fitisemanu ruling, Wong Kim Ark, and the Insular Cases
The case itself involves three individual plaintiffs, John Fitisemanu, Pale Tuli, and Rosavita Tuli, and the Southern Utah Pacific Islander Coalition, who filed suit to challenge the federal law that denies them birthright citizenship. The named plaintiffs were all born in American Samoa but now reside in Utah. They bear passports identifying them as United States nationals rather than citizens, and they do not have voting rights, the right to run for elective office in the United States, or the right to serve on juries.
In his ruling, Judge Waddoups exhaustively reviewed the history of birthright citizenship in the United States and the history of the nation’s governance of the eastern Samoan islands. He emphasized American sovereignty over them, initially established as granting “full powers and authority to govern the islands.” He engaged a lengthy and close reading of Wong Kim Ark, finding the case to have established that “The Fourteenth Amendment constitutionalized the English common-law rule for birthright citizenship, and it must be interpreted in light of that rule” (p. 57). The rule, he reasoned, linked citizenship to birth “within the dominion and allegiance of the sovereign,” and found that American Samoa “is a territory under the full sovereignty of the United States” (p. 58).
The status of some individuals under American governance, however, was not so simple. In 1898, the United States’ victory in the Spanish American War launched the nation into imperialism. Spain relinquished control over Cuba and the United States gained sovereignty over Guam, Puerto Rico, and the Philippines. The following year, the United States acquired the eastern Samoan islands, and incorporated the additional Samoan islands of Manu’a in 1904 (p. 25). These territorial acquisitions raised serious questions about the status of their residents and the extent to which the Constitution extended beyond the borders of the United States. In a series of cases decided between 1901 and 1922, the Supreme Court established that territorial residents were not entitled to the same rigorous constitutional protections as individuals residing in the continental United States.
Congress resolved the thorny question of these new American denizens’ status by creating the category of U.S. nationals shortly after the territories were acquired. This quelled concerns about extending citizenship to the overwhelmingly non-white inhabitants of these new possessions. At the same time that Congress, the executive branch, and the courts were establishing this distinction, the nation was also embracing and extending an immigration regime that enforced harsh racial distinctions, ultimately closing America’s doors to Asian immigration for decades.
Stare decisis as the solution?
Which rule, then, should apply to this situation? In Judge Waddoups’ analysis, the core question was about the Fourteenth Amendment’s citizenship clause. Because Downes dealt with a different constitutional issue, he found that it could not govern the outcome in Fitisemanu, even though the government argued that its reasoning on the scope of constitutional protection should extend to citizenship, affording Congress the capacity to legislate on this issue.
In determining that Wong Kim Ark, not Downes and the other Insular Cases, was the key precedent, Judge Waddoups declared that he had no choice but to rule in the way that he did. Wong Kim Ark, which by its own terms defined sovereignty to include territories, was for him “a dictate to future courts. A mandate that this court is duty-bound to follow” (p. 57). Further, using commonly accepted rules of construction, he identified Justice White’s opinion in Downes as the key opinion (no opinion in Downes garnered a majority), and noted that Justice White himself had limited the question to the applicability of the Constitution’s uniformity clause (p. 61).
In his opinion in Downes, Justice White did discuss citizenship, as did Justice Brown, and both rejected the idea that the acquisition of territory necessarily entailed attributing citizenship to the territory’s residents, Justice Brown in overtly racist terms. Judge Waddoups, however, dismissed these discussions as not essential to the ruling in Downes and not binding with regard to the direct question at issue in Fitisemanu.
The problem with taking cases from this era at face value
In some ways, the opinion’s careful weighing of both lines of doctrine makes sense. While both date back more than one hundred years, neither has been directly called into question, though Congress has taken action to transform most U.S. nationals into citizens.
The cases, however, should not bear the same weight in contemporary constitutional analysis. The political and racial context in which they were decided matters. Both Wong Kim Ark and Downes v. Bidwell were products of the Fuller Court. The Fuller Court’s most well known ruling is probably Plessy v. Ferguson (1896), the source of the infamous separate but equal principle jettisoned in Brown v. Board of Education in 1954. The Fuller Court’s racial sins were legion, but in addition to Plessy and its approval of congressional legislation excluding Chinese immigrants, it infamously declared that federal law could not touch the vicious intimation and subordination of black Southern laborers.
As I have noted previously, this history should influence how we understand Wong Kim Ark and birthright citizenship. Congress, the executive branch, and the courts in this era were all quite comfortable with the idea that not all men (much less women) were entitled to full American citizenship. The history of American regulation of its new territories unfolded at the same time that the nation was creating a robust conception of illegal immigration and establishing a system to thwart and ultimately close off entirely legal immigration by many on explicitly racial grounds. It also coincided with the Supreme Court’s abandonment of the last lingering Reconstruction-Era protections for black citizens. Even in this environment, however, the common-law principle of birthright citizenship was understood to override congressional plenary power, the rapidly developing administrative capacity to judge racial desirability of immigrants, and the racialized sentiments of many white Americans.
Originalism and historical analysis of precedents are tricky business under these circumstances. Right now, a robust debate considers whether the Fourteenth Amendment’s original intent was to constitutionalize a highly expansive form of birthright citizenship. For what it’s worth, I believe that the historical evidence suggests that this was the idea. Both the congressional debates over the amendment itself and Justice Gray’s careful analysis of then-prevalent theories of English common law and theories of sovereignty persuade me. The more interesting historical question is what we should do with precedents that are clearly rooted in the toxic integration of racism and imperialism that structured the integration of the territories.
Ultimately I agree with Judge Waddoups that following Wong Kim Ark is indeed the proper course here, but not because I see the federal courts as irrevocably bound to whichever line of precedent the judges believe to be more central to the question at hand. Fitisemanu at bottom leads me to two conclusions. One is that Wong Kim Ark, decided when it was by the Court that decided it, traces out a minimal acceptable constitutional baseline for birthright citizenship. The second is that it is long past time to place the Insular Cases in their proper category: that of Supreme Court cases embracing and advancing white supremacist ideology that all good contemporary constitutional scholars should abhor and reject.