Barnett and Wurman's Fundamental Misunderstanding of "Amity" in their "Allegiance for Protection" Theory of Birthright Citizenship

By now, most will have seen Randy Barnett and Ilan Wurman's disastrous opinion piece in the New York Times, Trump Might Have a Case on Birthright Citizenship. There, and without much conviction, Barnett and Wurman offer the conclusion that the original public meaning of the Citizenship Clause of the Fourteenth Amendment was that it did not give birthright citizenship to children born in the United States of parents unlawfully present in the country. The piece has been the subject of withering criticism that the duo has replied to (somewhat). In this post, I will address an issue that has not yet received attention: What does "amity" mean?

B&W's Allegiance-for-Protection Theory

The starting point is the Citizenship Clause: "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 focus of B&W piece and the backlash is on the language "subject to the jurisdiction thereof."

Barnett and Wurman's view of this language is that, to be subject to the United States' jurisdiction, one has to pledge allegiance to the sovereign in exchange for the sovereign's protection -- what they call the "allegiance-for-protection theory." They say a child born in the United States to undocumented immigrants is not a citizen because the parents did not engage in that exchange.

Coke's Report of Calvin's Case, and the Idea of Local Allegiance

One of Barnett and Wurman's primary supports is Calvin's Case, an English decision from 1608 that the influential Sir Edward Coke reported. One writer describes "Coke's report of Calvin's Case [as] one of the most important English common-law decisions adopted by courts in the early history of the United States. Rules of citizenship derived from Calvin's Case became the basis of the American common-law rule of birthright citizenship, a rule that was later embodied in the Fourteenth Amendment...."

This is how B&W summarize Calvin's Case:

Calvin’s Case was a 1608 judicial decision about who were birthright subjects of the English monarch, written by Edward Coke, one of the judges in the case and a legal thinker revered by the framers of the Constitution.[1] It explained that foreigners who came in “amity” — friendship — gave a “local” allegiance to the sovereign and an “obedience” to the laws while residing in his realm such that they were entitled to the protection and benefit of those laws. Their children were therefore born under the protection of the sovereign and had to, in their own turn, give allegiance to the sovereign. They were natural-born subjects even though their parents were not citizens. The decision makes clear that both the parents’ allegiance and the child’s birthplace were relevant.

(Emphasis added.)

Barnett and Wurman use this "amity" concept later on:

Which brings us to the children of people who are present in the United States illegally. Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws?

Clearly, the parents are not enemies in the sense of an invading army, but they did not come in amity. They gave no obedience or allegiance to the country when they entered — one cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws.

(Emphasis added.)

The "amity" idea is foundational to B&W's analysis. And they are completely, embarrassingly wrong about it. Amity, it turns out, is something of a term of art.

As Barnett and Wurman imply, there are different kinds of what was called "ligeance." As a preliminary, Calvin's Case explained that "Ligeance is a true and faithful Obediance of the Subject due to his Sovereign" that are "an Incident inseparable to every Subject; for as soon as he is born he oweth by Birth-right Ligeance and Obediance to his Sovereign" (PDF 24). This is a duty imposed on the subject as a consequence of his birth in the sovereign's lands.

Calvin's Case further explained that there are four types of ligeance. One is ligeantia naturalis, and it is owed by a citizen by birth. Another is ligeantia localis,

wrought by the Law, and that is when an Alien that is in Amity cometh into England, because as long as he is within Engl. he is within the King's Protection; therefore so long as he is here, he oweth unto the King a local Obedience or Ligeance, for that the one (as it hath been said) draweth the other.

(PDF 26 (emphasis added).) Barnett and Wurman invoke this local allegiance: A person who comes into the United States unlawfully does not come in amity and cannot pledge local allegiance even though, according to them, "the parents are not enemies in the sense of any invading army."

But that is exactly the sense "amity" was used in in Calvin's Case and, generally, in English law.

The Meaning of "Amity"

Calvin's Case cited three earlier precedents when discussing local allegiance. In one, a man born in Flanders claimed to be one of Edward IV's sons (the Princes in the Tower). He "invaded this Realm with great Power, with an Intent to take upon him the Dignity Royal." The pretender was captured and punished under martial law as an enemy. (PDF at 28.) In contrast, the offenders in the other cases came "in Amity with the King" or in "safe Conduct" and then engaged in treason -- treason, because they received the king's protection and so owed him allegiance. (PDF at 27.)

The distinction here is between alien friends and alien enemies. Two sentences later in Calvin's Case illuminates the distinction : "Every Man is either Alienigena, an Alien born, or subditus, a Subject born. Every Alien is either a Friend that is in League, &c. or an Enemy that is in open War, &c." (PDF 49.)

We find this distinction again in Coke's Institutes of the Laws of England (1644). Writing about high treason, Coke said: "And all aliens that are within the Realm of England, and whose Sovereigns are in amity with the kind of England, are within the protection of the king, and do owe a local allegiance to the king, (are homes within this Act) and if they commit High Treason against the king, they shall be punished as Traitors, but otherwise it is of an Enemy, whereof you may read at large [citation to Calvin's Case]." (PDF at 15-16.) Later, still writing about high treason:

Inimicus in legal understanding is hostis [an enemy], for the subjects of the king, though they be in open war or rebellion against the king, yet are they not the king's enemies, but traitors; for enemies be those that be out of allegiance of the king. If a subject join with a foreign enemy, and come into England with him, he shall not be taken prisoner here and ransomed, or proceeded with as an enemy shall, but he shall be taken as a traitor to the king.

An enemy coming in open hostility into England, and taken, shall be either executed by martial-law, or ransomed; for he cannot be indicted of treason, for that he never was within the protection or ligeance of the king, and the indictment of treason faith, contra ligeantiam suam debitum.

(PDF at 32.) Sounding a similar note is William Hawkins in his Pleas of the Crown (1716), at PDF 49, a volume the U.S. Supreme Court has cited many times.

Another influential writer, Sir Matthew Hale, made the point more succinctly in Pleas of the Crown (5th ed. 1716): "An Alien Enemy, committing any hostile act, dealt with as an Enemy: an Alien Amy committing any Treason, a Traytor within the Law." (PDF 27 (emphasis added).)

"Amy" is another way to spell "ami," which of course means "friend."

The Obvious Implication for Barnett and Wurman

English law drew a distinction between:

1. alien friends, who came in amity and received protection for which they owed local allegiance, and

2. alien enemies, who received no protection and owed no duty of allegiance.

My reading of the sources is that, to be classified as the latter, an alien had to be in open war against England or part of invasion of the nation.

There goes B&W’s “Clearly, the parents are not enemies in the sense of an invading army, but they did not come in amity.” If the parents were not part of an army invading or in open war against the nation, they were not alien enemies but alien friends -- capable of receiving protection and owing the duty of allegiance. And there is support in another influential treatise for the idea that whether a foreigner has gained lawful entry to the country does not bear on whether he comes under the protection of the sovereign or owes the resulting duty of allegiance.

Barnett and Wurman relied on a word in an important historical source, Calvin's Case, and failed to appreciate that the word, key to their argument, was really a term of art. In a prototypical example of bad originalism, they projected their own modern sense backward. But amity's historical technical meaning, derived from the distinction between alien friends and alien enemies, would have been well known to the framers of the Fourteenth Amendment. That is the meaning that controls, and it destroys B&W's argument.

[1] I don't believe this is an accurate description. Barnett and Wurman seem to have overlooked how cases were argued, heard, and decided in those days. In fact, Coke's report of the case provides an unusual level of detail about the proceedings.