Currently pending for decision before the United States Supreme Court is the case of Trump v. Barbara which presents the question of who is a United States citizen. The Fourteenth Amendment states that “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.” The issue in this case involves the status of the parents of a child born in the United States when the parents are not United States citizens. Does the Fourteenth Amendment require that at least one parent be in the United States legally and permanently? The answer depends on how to interpret the Amendment's requirement that a child born in the United States must also be subject to the jurisdiction of the United States.
The government's position in Trump v. Barbara is that when a child is born in the United States of alien parents, for the child to be a citizen, at least one parent must be a lawful permanent resident.
So, how is English common law relevant? The answer to this question requires the answer to four further questions: (1) What is English common law? (2) Why does English common law matter in American law? (3) What is the English common law on English citizenship? And, (4) how has English common law been applied in American law?
The English common law developed after the Norman Conquest in 1066 with the objective of establishing law at the national level across England. This law, called “common” because it was applied nationally, was established through cases decided by judges. Parliamentary statutes were unnecessary, although Parliament could change or add to the common law. This judge-made law was recorded in case reports, and as new cases were presented, judges would consult the reports. If applicable, previous case decisions would act as precedent in deciding new cases. If a decision presented a new issue, the judges would then decide upon that new issue. In their fondness for Latin, English judges called this rule for following precedent stare decisis, to stand by things decided. These court decisions, recorded in the reports, were detailed, describing the facts of the dispute, the arguments of the parties, and the reasoning of the judges including their reliance on previous decisions.
The second inquiry is why English common law matters in American law, and, in particular, why English common law matters for birthright citizenship.
The English common law was applied by the original 13 colonies, and following independence, by the 13 states and the new federal government. This process varied. First, there was a cutoff date, generally the common law that was applied was the English common law as it existed at some point before independence. After that, local courts took over. Secondly, the common law as applied took into account current circumstances of American independence. As Justice Story stated in the Supreme Court decision of Van Ness v. Pacard (1829):
The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles and claimed it as their birthright, but they brought with them and adopted only that portion which was applicable to their situation.
Thirdly, Congress and State legislatures could and did add to and change common law. For this reason, English common law on birthright citizenship does not directly answer who is a citizen of the United States. The answer to that question is provided by the Fourteenth Amendment's citizenship clause. What English common law does is assist in interpreting the clause's language requiring that a person born in the United States be "subject to the jurisdiction thereof." As stated by the Supreme Court in Wong Kim Ark (1898), interpretation of the citizenship clause must be "in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution." The Court found the relevant common law in Calvin's Case, a decision of an English court decided in 1608.
In Calvin, the plaintiff sought allowance of his inheritance of land in England. Defendants countered that the plaintiff could not inherit land in England because the plaintiff was not a subject (citizen) of England, having been born in Scotland. At the time of the plaintiff’s birth in Scotland, 1608, James I was king of England. Before that, he was king of Scotland as James VI. When he became king of England, he unified the two crowns. Despite James' being king of both, England and Scotland had retained their own parliaments, courts, and laws. The issue was whether plaintiff (Calvin) was a citizen of England.
Citing the common law, the judges ruled that Calvin was an English subject having been born in England and of parents who were aliens temporarily residing in England and whose nation of birth was not at war with England.
The Court framed citizenship in terms of allegiance and amity. Calvin's birth in England satisfied the first part of the common law's requirement of allegiance. Calvin, said the Court, was born in England where James was king and thus Calvin owed allegiance to James. Amity was an issue because Calvin's parents were citizens of Scotland who were born in Scotland at a time when James was king of Scotland but not king of England. Thus, Calvin's parents, temporarily residing in England when Calvin was born, were aliens. The answer, the second part of allegiance and the common law rule of amity, was that Calvin's parents, while temporarily residing in England, owed temporary allegiance to James while in England. The requirement for amity was met because Scotland, the nation of the birth of Calvin's parents, was not at war with England either declared or by invasion.
So, how has English common law on citizenship been applied in American law? In the leading case, Wong Kim Ark, the Supreme Court applied Calvin's case to rule that a child born in the United States of Chinese parents was a citizen. These parents were lawfully and permanently in the United States, but the Court's language, citing the common law, applied to alien parents who were temporary residents. Subsequently, the United States has consistently recognized that the Fourteenth Amendment establishes birthright citizenship regardless of the nature of the alien parents' residence with the common law exceptions. The exception for Native Americans, if a tribal member, who were excluded as not being subject to United States jurisdiction, was based on similarity to the common law exception for children of foreign diplomats. The exception for native Americans was reversed by the Indian Citizenship Act of 1924. Interestingly, Parliament has replaced English common law with the British Nationality Act of 1981 which includes a requirement that at least one parent be a citizen or settled (permanent) resident for citizenship based on birth in the United Kingdom.
The outcome of the current case is likely to depend on stare decisis as much as the court's view of English common law.
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