WTF is "Prima Facie Citizenship"? Nothing New

In the push to manufacture a debate over birthright citizenship, a new concept has appeared: "prima facie citizenship." Kurt Lash has posted a draft introduction to an essay he'll title "Prima Facie Citizenship: Birth, Allegiance, and the Fourteenth Amendment Citizenship Clause." Like Randy Barnett and Ilan Wurman, Lash relies heavily on an 1862 opinion by Attorney General Edward Bates. Per Lash, the opinion proffered this "prima facie citizenship" idea. Lash, as well as Barnett and Wurman, seems to believe this is an independent or unique approach to birthright citizenship, so much so that Lash is writing an essay on it. Lash likely will reach the same point as Barnett and Wurman, though: the creation of new exceptions to birthright citizenship that turn on the status of the parents.

In Lash's words:

This essay proposes a different and more historically justified way to understand the dual requirements of birth citizenship [birth "in the United States" and "subject to the jurisdiction thereof"]: Prima facie citizenship. As explained by Attorney General Edward Bates in his influential 1862 Report "on Citizenship," prima facie citizenship treats birth in the United States as establishing a presumption of citizenship. That presumption may be overcome, however, by positive evidence that the person was not born "subject to the jurisdiction" of the United States. That requirement involves considerations of familial allegiance to the law-speaking authority of the people of the United States. As the Senate sponsor of the Citizenship Clause, Lyman Trumbull[,] explained, "what do we mean by 'subject to the jurisdiction of the United States?' Not owing allegiance to anybody else. That is what it means."

(Footnotes omitted.)

If this fairly reflects Lash's thesis, it offers no particular insight. Edward Bates was writing about nothing more interesting than burden-shifting, a legal concept known to all lawyers, like Bates, of whatever era.

"Prima Facie" and Burden-Shifting

Before turning to the Bates’ opinion, let's start with the meaning of “prima facie.” A leading legal dictionary of the time, Bouvier, Law Dictionary (5th ed. 1855), defined the term:

PRIMARY FACIE. The first blush; the first view or appearance of the business; as, the holder of a bill of exchange, indorsed in blank, is prima facie its owner.

2. Prima facie evidence of a fact, is in law sufficient to establish the fact, unless rebutted.

(Emphasis added and citations omitted.) Noah Webster's American Dictionary of the English Language (1865) contains the same definitions and, for the legal definition, cites Bouvier. The first edition of Black's Law Dictionary (1891) contains lengthy definitions of prima facie and prima facie evidence.

What Bates Wrote and Meant

Just by comparing what Bates wrote against the dictionaries, we can see that he wasn't writing about some free-floating concept or doctrine of "prima facie citizenship." His use of "prima facie” shows instead that he was talking about prima facie evidence in specific adjudications of citizenship:

If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disenfranchisement strong enough to override the "natural born" right as recognized by the Constitution in terms most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.

....

In every civilized country the individual is born to duties and rights -- the duty of allegiance and the right to protection; and these are correlative obligations, and the one the price of the other, and they constitute the all sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, his country. ...

....

I have said that, prima facie, every person in this country is born a citizen; and that he who denies it in individual cases assumes the burden of stating the exception to the general rule, and proving the fact which works the disenfranchisement. There are but a few exceptions commonly made and urged as disqualifying facts. I lay no stress upon the small and admitted class of the natural born composed of the children of foreign ministers and the like, and

(Emphasis added.) Bates then avoided or knocked down purported other exceptions that some had floated: slavery, color, and race.

Bates was making two points:

1. Again, this was about specific adjudications ("individual cases"), not some grand theory of birthright citizenship.

   
   

2. The "great disenfranchisement[s]" are the closed, not open, set of exceptions that had been recognized to that time. (Evan Bernick, Anthony Michael Kreis, and Paul Gowder allude to the closed nature of the set in their article responding the Barnett and Wurman New York Times piece. Michael Ramsey goes over them in detail in his 2020 law review article.)

To elaborate on the second point, Bates said, "There are but a few exceptions commonly made and urged as disqualifying facts," namely, "the small and admitted class of the natural born composed of the children of foreign ministers and the like." The exceptions were the children of foreign ministers, the children of enemies in an invading army occupying our territory, children born on a foreign-flagged ship even if in our national waters, and the children of Native Americans -- none of whom were subject to the jurisdiction of the United States. (Ramsey discusses this aspect of Bates' opinion and Barnett and Wurman's reliance on it in a blog post.)

It makes all the sense to consider these narrow, historically rooted exceptions the "great disenfranchisement[s]." It makes no sense to infer that Bates was referring to some other, unrecognized exceptions, undiscovered until now, which is what Barnett, Wurman, and Lash are trying to do by misreading Bates: create brand-new exceptions to birthright citizenship based on the abstraction of a “rule” from a fact, the status of the parents, common to the recognized exceptions to jus solis. Barnett and Wurman call it the "allegiance-for-protection theory," while Lash names it "prima facie citizenship," which depends on "familial allegiance."

But Bates was simply saying: If you were born in the United States, you have presented prima facie evidence of U.S. citizenship. That is a presumption which can be rebutted. If someone contests your citizenship, they have to present contrary evidence satisfying one of the jus solis exceptions. If there is none, citizenship is established. Lash seems to understand this in the paragraph I quoted above. Yet then he blows up Bates' discussion of vanilla burden-shifting into Bates spinning some grand theory of birthright citizenship that has no basis in the text of the opinion. Again, Bates was talking about specific adjudications of citizenship.

We know this is what Bates meant because, beyond his actual words ("individual cases'), there were cases litigating citizenship in these terms. For example, in Inglis v. Trustees of Sailor's Snug Harbor (1830), the U.S. Supreme Court asked:

How then is his father Charles Inglis to be considered? Was he an American citizen? He was here at the time of the declaration of independence, and prima facie may be deemed to have become thereby an American citizen. But this prima facie presumption may be rebutted; otherwise there is no force or meaning in the right of election.

(Emphasis added.) In Murray v. The Schooner Charming Betsy (1804), an attorney argued to the U.S. Supreme Court:

His birth is prima facie evidence that he is a citizen of the United States and throws the burden of proof upon him [to prove he is not]. No law has been shewn by which he could be a naturalized subject of Denmark, nor has he himself ever pretended to be more than a burgher of St. Thomas's.

(Emphasis added.) Other cases include United States v. Gordon (C.C.S.D.N.Y. 1861) and White v. White (Ky. 1859).

The Influence of Bates' Opinion

It’s true, as Lash writes, that Bates’ opinion was "influential." So far, however, Lash hasn't offered any real evidence that its influence extended to the doctrine he reads into the opinion. He cites four sources in a footnote:

• Timothy Farrar's Manual of the Constitution of the United States of America (1867): Apparently for students, quoting (in a footnote) from the first paragraph in the Bates block quote above.

  
  

• Israel Ward Andrew's Manual of the Constitution of the United States, Designed for the Instruction of American Youth in the Duties, Obligations, and Rights of Citizenship (1874): After citing Bates in the preceding paragraph: "Citizens are either native-born, or naturalized. Every person born in the country is, at the moment of birth, a prima facie citizen. An alien can become a citizen only by compliance with the rule of naturalization prescribed by Congress."

• George W. Paschal's The Constitution of the United States, Defined and Carefully Annotated (1876): Seemingly for a general audience, citing Bates and stating: "Every person born in the country is, at the moment of birth, prima facie a citizen."

• James Garfield's speech in the House on the Klu Klux Klan Act on April 4, 1871: "In the admirable opinion of Attorney-General Bates, delivered to Secretary Chase, November 29, 1862, this whole subject [birthright citizenship] is thoroughly discussed. He says: 'The Constitution itself does not make the citizens (it is, in fact, made by them). . . . . Every person bon in the country is, at the moment of birth, prima facie, a citizen."

These sources aren't probative. First, all but one (Farrar) came out after the Fourteenth Amendment was ratified. Those three don't bear on the Citizenship Clause's original public meaning. Second, all sources merely repeated or paraphrased, very briefly, what Bates wrote about burden-shifting. They don't claim that Bates was proposing a grand theory of "prima facie citizenship."

The opinion was influential for a time but, contrary to what Lash suggests, it was cited for its strong support for birthright citizenship. (As others have asserted, the Bates opinion stands for precisely the opposite proposition -- a broad and unequivocal Citizenship Clause -- than that claimed by Barnett, Wurman, and Lash -- a narrow and malleable one.) For this I refer you to Representatives James Wilson's and William Lawrence's addresses during the congressional debates on the Civil Rights Act of 1866.

We'll have to wait to see Barnett and Wurman's and Lash's complete articles. But so far, B&W's latching onto Bates' use of "amity" has proven a misfire. And the idea that Bates presented some grand "prima facie citizenship" theory will meet the same fate. “Prima facie” isn’t capable of bearing the weight they're going to place on it.

[Note: I edited the parenthetical sentence in the second-to-last paragraph to correct an error.]