Tuaua v. United States: Does the Citizenship Clause mean what it says?

May 28, 2014

The first sentence of the Fourteenth Amendment says: “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.” American Samoa is a territory that is part of the United States. So you might have thought that people born in American Samoa are U.S. Citizens. But the federal government has long taken the view that they are not. It is not clear that this is consistent with the Fourteenth Amendment.

That constitutional question is the subject of an interesting case pending in the D.C. Circuit — Tuaua v. United States. Here is information on the case. The U.S.’s position is also criticized in amicus briefs by a group of citizenship scholars (Sam Erman, Nathan Perl-Rosenthal, Holly Brewer, Linda Bosniak, Kristin Collins, Rose Cuisan-Villazor, Stella Elias, Linda Kerber, Bernie Meyler, Michael Ramsey, Lucy Salyer, Rogers Smith, and Charles Venator-Santiago) and by a group of constitutional history scholars (Christina Duffy Ponsa, Gary Lawson, Sandy Levinson, Bartholomew Sparrow, and Andrew Kent), among others. Michael Ramsey has a post about the former brief on the Originalism Blog.

A few recent D.C. Circuit decisions have featured an admirable willingness to look directly at the Constitution’s original meaning, even if that result is inconsistent with a contested modern practice (Noel Canning is the most prominent example). I wonder if Tuaua will continue the trend or break it.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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