Professor Lash and Lynch v. Clarke, the Case He Wishes Would Go Away

Kurt Lash recently posted a revised draft of his anti-birthright citizenship article, Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment's Citizenship Clause, to SSRN. He also announced that the Notre Dame Law Review has made the (poor) decision to publish it. The revisions don't really fix any of the problems, big or small, even after I and others, especially Evan Bernick, pointed out the many, many errors.

This long post will be about Lash's treatment of the case of Lynch v. Clarke, decided in 1844 by Assistant Vice Chancellor Sandford of New York. There the judge held that a child born in the United States to aliens not domiciled here was, nevertheless, a U.S. citizen.

Lash spends quite a bit of time on the case. As he writes, the case "plays an important role in later court decisions," like United States v. Wong Kim Ark, "and in contemporary debate." But because Attorney General Edward Bates didn't mention the decision in his influential 1862 report on citizenship, Lash says "the omission is important to any effort to identify the likely original understanding of the Fourteenth Amendment's Citizenship Clause."

To be frank: Lash misrepresents the case in two important ways. First, the case does not say what Lash says it does, and second, it was quite a bit more influential than he tells his readers. (I say "misrepresents" because nearly all of the below was pointed out to Lash before he posted his revised draft to SSRN; his revisions suggest he was aware of the particulars of the heavy criticism the earlier draft came under.)

What Lynch v. Clarke Said

The case was an inheritance dispute that turned on the citizenship of Julia Lynch, the niece of the deceased.

Julia's parents were British subjects and domiciled in Ireland. They came to the United States in 1815, stayed until the summer of 1819, and then returned to Ireland. Julia was born in New York City in the spring of 1819. Her parents took Julia with them when they returned to Ireland, where she remained until the death of her uncle. Sandford concluded, based on the evidence, that Julia's parents' presence in the United States was only a "temporary sojourn." They never intended to settle here permanently and, thus, never made the United States their domicile.

The first sentence of the judge's 50-page opinion: "The first question which I will examine in this case, is the political condition of the defendant, Julia Lynch, at the death of her uncle, Thomas Lynch."

Canvasing the history and law, Sanford stated: "Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen." Applying that rule, he held: "In conclusion, I entertain no doubt but that Julia Lynch was a citizen of the United States when Thomas Lynch died." It did not matter to the judge that Julia's parents weren't even domiciled in the United States.

Lynch v. Clarke is bad for Lash's anti-birthright citizenship position. So what does he do? He misrepresents the case's holding and its influence.

Lash Misrepresents Lynch's Holding

Lash's first move is to misrepresent what Sandford held. According to Lash, everyone else got Lynch wrong, and only Lash gets it right.

Per Lash:

The sixth edition of Kent’s Commentaries (edited by his son William) added a note referencing the Lynch case, but either misquotes or mischaracterizes the decision. After stating the general rule from prior editions that “Natives are all persons born within the jurisdiction and allegiance of the United States,” the editor of sixth edition added a note claiming that “[t]his is the rule of the common law, without any regard or reference to the political condition or allegiance of the parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent” (citing both Calvin’s Case and Lynch v. Clarke). As a reading of Lynch, this is doubly incorrect. Judge Sandford actually said that “all persons born within the ligeance of the crown of England, were natural born subjects, without reference to the status or condition of their parents.” Whatever Sandford meant by “status or condition,” he did not mean allegiance since he expressly noted that the common law did consider the political condition and “allegiance” of foreign minister parents.

(Emphasis in original; footnotes omitted.) In a footnote, Lash writes: "Status and condition could include anything from foreign birth, to nobility to property ownership."

Again, the first sentence of Sandford's opinion: "The first question which I will examine in this case, is the political condition of the defendant, Julia Lynch, at the death of her uncle, Thomas Lynch." (Emphasis added.) He used these and similar terms throughout:

• "It is evidence, therefore, that the right depends upon her alienage or citizenship at the time of her departure from this country ... ; for no act intervened between that time and the death of Thomas, which could alter her political state or condition." (Emphasis added.)

• Describing the position of the opponents of Julia's citizenship: "It was assumed to be an indisputable proposition, that by the international or public law, the child follows the political condition of the parent." (Emphasis added.)

• "Waiving these considerations, what, in a case like that of Julia Lynch, is to be her political quality and condition, until the period of her right to elect shall have arrived?" (Emphasis added.)

We see that, for the judge, Julia's political condition, not her parents', was the dispositive issue.

Were Sandford's own words not enough to disprove Lash, there's more. One headnote to the opinion: "It is therefore the law of the United States, that children born here, are citizens, without any regard to the political condition or allegiance of their parents." (Emphasis added.)

[UPDATE: Something I had been thinking about was how much weight to place on the headnote. True, headnotes were important to readers and influenced their understanding of a case. But I wondered, Who wrote the headnote? There were indications the reporter was Sandford himself. Report volumes were typically named after the reporter (“nominative reports”), Sandford wrote the preface, and citations were often to “Sandford’s Chancery Reports.” Turns out, Sandford was the reporter (See page 37.) Which means he wrote the above headnote. The headnote, therefore, is an authoritative statement of the case’s holding.]

And back in the day, reporters often included the attorneys' arguments with the report of the case. The report of Lynch quoted the parties' written briefs. Thus an opponent's argument: "Then by recurring to the public law, which furnishes the rule of decision, Julia is clearly an alien to the United States, on the principle that in questions of alienage and citizenship, the child follows the political condition of the parent." The arguments contained yet more references to "political condition."

Lash expresses a studied confusion about what Sandford meant when he said "all persons born within the ligeance of the crown of England, were natural born subjects, without reference to the status or condition of their parents" (emphasis in original). When he quotes this language, Lash doesn't tell us that, in the original, "status" was italicized (as it is elsewhere in the opinion), which suggests a specialized meaning. And indeed, in the opinion, both "status" and "condition" are related to citizenship, not, e.g., "nobility" or "property ownership."

Lash's treatment of Lynch v. Clarke is off to a bad start. Yet even if everyone got Lynch wrong, it wouldn't matter so long as they got it wrong in the same way. For public meaning originalism, what matters is how the framers and ratifying public received Lynch.

Lash Misrepresents Lynch's Influence -- Judicial Decisions

Next, Lash tries to pass Lynch off as some obscure, low-level outlier with no influence. He dismisses it, for example, as a "single-judge opinion." Well...

Here's New York's highest court in Munro v. Merch in 1863, not long before the framing of the Fourteenth Amendment:

The plaintiff is not an alien. He was born in this country, and under the present government. That fact alone, irrespective of, or rather despite, all other considerations, makes him a native born citizen. (Bac. Ab. tit. Alien, A; Com. Dig. Alien, A. & B; 7 Co. 19, Calvin's Case; 1 Blk. Com. 236-74; 2 Kent Com. 37-50; Lynch v. Clark, 1 Sand. Ch. R. 583, in point.)

And SCOTUS justice Swayne riding circuit in October 1867, during the amendment's ratification period:

All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. 2 Kent, Comm. 1; Calvin's Case, 7 Coke, 1; 1 Bl. Comm. 366; Lynch v. Clarke, 1 Sand. Ch. 583.

This case, United States v. Rhodes, is significant because it was the first federal opinion on the Fourteenth Amendment's precursor, the Civil Rights Act of 1866.

We have New York's highest court and a SCOTUS justice -- in an important case -- citing Lynch in the same breath as Blackstone, Coke, Calvin's Case, and Kent's Commentaries. Lash acknowledges Rhodes but not Munro.

It's not just judicial decisions that attest to the case's renown. There are letter opinions from U.S. attorneys general.

In 1859, Attorney General Black wrote a letter opinion that, omitting the formal parts, read:

... I have to say that a free white person born in this country, of foreign parents, is a citizen of the United States. (Lynch vs. Clarke et al., 1. Sandford Ch. R., p. 583.) I expressed a similar opinion in my letter to you of September 8, 1858.

In a letter opinion from September 1862, shortly before he issued his opinion on citizenship, Attorney General Bates wrote in part:

I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States.... I might sustain this opinion by a reference to the well settled principle of the common law of England on this subject; to the writings of many of the earlier and later commentators on our Constitution and laws; ... and, lastly, to the dicta and decisions of many of our national and State judicial tribunals. But all this has been well done by Assistant Vice Chancellor Sandford, in the case of Lynch vs. Clarke, (1 Sand. Ch. Rep., 583,) and I forbear. I refer to his opinion for a full and clear statement of the principle, and of the reasons and authorities in its support.

(Emphasis added.)

Despite the obvious import of these letters, Lash brushes them aside. Of the Bates letter specifically, he says that Bates didn't see fit to cite Lynch in his lengthy opinion on citizenship. So what? These letters show that Lynch was authoritative at the highest levels of the American legal profession and, indeed, its government.

Lash Misrepresents Lynch's Influence -- Popular Press

The Lynch decision was well covered by the popular press.

Several newspapers ran a long report on the case. The New York Daily Herald, for instance carried this on November 12:

IMPORTANT DECISION. -- Natural Born Citizens -- Assistant Vice Chancellor Sandford this day decided in the case of B. Lynch vs. J. Clarke and Julia Lynch, that a child born in this country of alien parents, is a citizen of the United States. The rule applies equally where the parents are here temporarily as where they come here for a permanent residence. The children of foreign ambassadors are an exception.

The question arose between persons claiming to be heirs of Thomas Lynch, of the firm of Lynch & Clarke, formerly so well known in this city. ... [I]t was set up among other things that Julia Lynch, a niece of Thomas, whose father died before Thomas, was a citizen of the United States, and inherited all of his real estate. It appeared that she was born in this city in 1819, but her parents were aliens, and were here temporarily. They returned to Ireland in 1819, and lived and died there. Julia Lynch, then an infant, was removed to Ireland with them, and lived there till after the death of Thomas Lynch. It was argued that she was born an alien, that her national character followed that of her parents, and that she never became a citizen of the United States.

It was decided that she was a citizen by birth, without reference to the subsequent events, and that she being the only heir of Thomas Lynch, who was capable of inheriting, took the whole of his real estate by descent.

This comprehensive report appeared in the New-York Tribune the same day, and in the Courrier de la Louisiane all the way down in New Orleans on November 21, telling its readers this was an "Important Decision" and crediting the New York Sun.

The Ohio Democrat ran this shorter report, apparently clipped from the longer one, on November 21 capturing the case's core holding:

A highly important decision. -- In the Court of Chancery, New York, on Monday, Assistant Vice Chancellor Sandford decided in the case of B. Lynch vs. J. Clark [sic] and Julia Lynch, that a child born in this country, of alien parents, is a citizen of the U. States. The rule applies equally where the parents are here temporarily, as when they come here for a permanent residence. The children of foreigners embassadors [sic] are an exception.

(Emphasis in original.)

Materially identical reports ran in the American and Commercial Daily Advertiser (Baltimore) on November 8, the Brooklyn Eagle on November 14, the American Republican and Baltimore Daily Clipper on November 14, the Buffalo Courier on November 20, the Lexington Inquirer (Ky.) on November 22, the Cadiz Journal (Ohio) on November 27, and in the Vicksburg Whig (Miss.) on December 2 (crediting the Louisville Journal).

All these articles strongly suggest the existence of others around the country that aren't easily accessible to us. They were brought to Lash's attention but in his revised draft he mentions only two 1848 articles from the New York Spectator and the Commercial Advertiser, both in New York. From these two sources, he concludes, "Although a few newspapers noted the opinion prior to Reconstruction, none described Lynch as addressing the 'political condition or allegiance of the parents.'" Okay... But the long report in the New York Daily Herald, the New-York Tribune, and the Courrier de la Louisiane said the case involved Julia's "national character." Isn't that pretty damn close?

Lash Misrepresents Lynch's Influence -- Legal Treatises

Let's start with James Kent's Commentaries on American Law (6th ed. 1848), which we'll see accurately characterized Lynch:

Natives are all persons born within the jurisdiction and allegiance of the United States.(a)

(a) This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. Calvin's Case, 7 Co. Lynch v. Clarke, 1 Sandford's Ch. R. 584, 639. In this last case the doctrine relative to the distinction between aliens and citizens in the jurisprudence of the United States was extensively and learnedly discussed.... It was ... held in that case, that the complainant, who was born in New York of alien parents, during their temporary sojourn there, and returned while an infant, being the first year of her birth, with her parents to their native country, and always resided there afterwards, was a citizen of the United States by birth. ...

The tenth edition of the Commentaries was published in 1860, shortly before the framing of the Fourteenth Amendment, and it had the same note.

A short volume specifically on naturalization laws, Native and Alien: The Naturalization Laws of the United States (Rochester, 1855), cited Lynch in its discussion of citizenship by birth in the United States.

T.M. Lalor's The Law of Real Property of the State of New York (1855) summarized Lynch and its holding:

Who capable to hold lands. -- Every citizen of the United States is capable of holding lands within this state, and of taking the same by descent, devise or purchase.

Citizens are either natives or naturalized aliens.

Natives are all persons born within the jurisdiction and allegiance of the United States; 2 Kent's Com. 37. And this, whether born of alien parents or not; Lynch v. Clarke, 1 Sandf. Ch. 583. In that case, J.L. was born in the city of New York in 1819, of alien parents during their temporary sojourn in that city, and returned with them the same year to their native country; she was adjudged to be a citizen of the United States. "Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen;" Ib., per Sandford, A.V.C., p. 663.

Similar squibs can be found in a digest of cases published in Cincinnati in 1845 (crediting the New-York Tribune) and a digest published in New York in 1855.

Lynch also was cited for other points in a major work on interpretation in 1857 and in a well-known volume on international law in 1861.

Although it was published the year the Fourteenth Amendment was ratified, George Paschal wrote in The Constitution of the United States Defined and Carefully Annotated (Wash, D.C., 1868):

A free white person born in this country, of foreign parents, is a citizen of the United States. (Lynch v. Clarke, 1 Sandford's Ch. R. 583.) 9 Op. 374 [AG Black's 1859 letter opinion]. This is a universal principle unless changed by statute, as in our own statute, to prevent the alienage of children born abroad. 10 St. 604. Bates on Citizenship, 13.

Ironically, Lash cites Paschal's book for his made-up "doctrine of prima facie citizenship."

A digest published the same year in Washington, D.C., had an accurate, one-sentence account of Lynch's holding citing the case and AG Bate's letter opinion from 1862 (and it reprinted the United States v. Rhodes opinion).

* * *

After President Johnson vetoed the Civil Rights Act of 1866, Congress overrode the veto and made it law. During the post-veto debate in the House, Representative William Lawrence gave a speech where he discussed, among other issues, the section of the act that was the precursor of the Citizenship Clause. He singled out Lynch:

In the great case of Lynch vs. Clarke, it was conclusively shown that in the absence of all constitutional provision or congressional law "declaring citizenship by birth, it must be regulated by some rule of national law" "coeval with the existence of the Union," which was and is that all "children born here are citizens without any regard to the political condition or allegiance of their parents." (1 Sandford's Ch. R., 583.)

According to Lash, "Lawrence is quoting a note added to the sixth edition of Kent’s Commentaries." If you compare the quotes to Kent's note, you'll see that's not true; Lawrence seems to be quoting directly from the Sandford report's headnotes for Lynch.

That doesn't matter, though. We know that everyone correctly understood what Lynch stood for. The only one who doesn't is Lash. We also know, contrary to what he tells us, that the judge's opinion in Lynch was widely known and respected on the issue of natural born citizenship. It is probative, perhaps even highly probative, of the likely original meaning of the Citizenship Clause. We shouldn't be surprised that the U.S. Supreme Court turned to Lynch in its own Wong Kim Ark.

I'm not a historian. I'm a simple appellate lawyer. And to be honest, I don't even really like federal constitutional law. It should be embarrassing that it was so easy for me to catch Lash's misrepresentations about Lynch -- just one of his articles many problems.