Did the Solicitor General Misrepresent Flournoy Article in Birthright Citizenship Oral Argument

One of the Solicitor General’s primary claims in the Trump v. Barbara oral argument was that the Trump Administration’s position on birthright citizenship aligns with the consensus of commentators in the late 19th and early 20th centuries, the Supreme Court’s decision in Wong Kim Ark notwithstanding. Setting aside whether post-ratification commentary is a reliable guide to the original public meaning of a constitutional provision–particularly where, as here, many opponents of the Fourteenth Amendment sought to narrow the scope of its guarantees–many scholars (and amicus briefs) contest the SG’s claim.

One point of contention concerns the opinions of Richard W. Flournoy, Jr., an attorney in the State Department who wrote several articles related to citizenship, including “Dual Nationality and Election,” 30 Yale Law Journal 545 (1921).

Although the government did not cite Flournoy’s article in its opening brief, the SG did mention it at argument. In response to a question from Justice Kagan, the SG said:

I disagree with the way you’ve characterized the understanding of Wong Kim Ark. And I would point to something that’s emphasized in their amici’s briefs, which is, in 1921, Richard Flournoy, who becomes a senior State Department official in the Roosevelt administration and pushes their theory as to temporary sojourners, writes a Law Review article in 1921 where he says: I think that children of temporary visitors should be citizens. But he admits that is not the understanding of Wong Kim Ark. He admits Wong Kim Ark did not hold that.

And he admits that there’s an array of authorities that go against him. He talks about careful and reliable, high authorities And that’s referring to the consensus that we point out in pages 26 to 28 of our brief, where you’ve got 12 treatises from 1881 to 1922 that all say –including for decades after Wong Kim Ark, that say children of temporary sojourners are not included. What happens between 1921 and the 1930s? Well, Mr. Flournoy became a senior State Department official, and he adopted that as the policy of the Roosevelt administration. So their argument is basically saying there wasn’t this consensus going back to 1898. The consensus, as their own author admits, goes entirely in the opposite direction for 50 years, right? For 50 years, from the framing of the clause, through the 1920s, maybe 60 years, the general understanding when it comes to what’s at issue here and was not at issue in Wong Kim Ark is that children of temporary visitors do not become citizens under the clause.

The SG makes an interesting (if unintentional) concession here: The federal government adopted the conventional view of birthright citizenship in the 1930s, so this was the prevailing understanding when Congress codified the current statutory rule concerning birthright citizenship. It was how federal law was understood and enforced and (as the SG’s reply brief notes) the 1940 statute was not understood to make any change to the underlying law. (Indeed, the SG’s reply brief cites Flournoy’s 1940 testimony to Congress on this point.) This supports my claim that, whatever one thinks of the original public meaning of the 14th Amendment’s citizenship clause, the established public meaning of the relevant statutory provisions at the time of their enactment was the conventional understanding.

But what of the SG’s specific claims about what Flournoy wrote in 1921? Some scholars, such as Evan Bernick, accuse the SG of misrepresenting Flournoy’s article and what it said about Wong Kim Ark.

The surest way to evaluate this claim is to go to the source. So here (as best as I can tell) is the relevant portion of Flournoy’s 1921 article (at 552-53).

Notwithstanding the decisions of the courts mentioned and others to the same effect, the law of this country concerning citizenship by birth has been misstated by a number of writers on international law, who have assumed that, in order that a person born in the United States of alien parents may have American citizenship, his parents must have been domiciled in this country at the time of his birth. This error seems to have originated with Wharton, who seems to have gone so far as to hold that persons born in the United States of alien parents were not citizens of the United States, under the provisions of the Civil Rights Act, since their parents were “subject to a foreign power.” He seems to have fallen into the error of construing these words as equivalent to “subjects of a foreign power.” He cites several declarations of Secretaries of State in support of his opinion, but these declarations are not in accord with the decisions of the courts. Mr. Hannis Taylor, relying partly upon Wharton, expresses his opinion that “children born in the United States to foreigners here on transient “residence are not citizens, because by the law of nations they were not “at the time of their birth ‘subject to the jurisdiction,”‘ and Wharton’s opinion has also been followed by such careful and reliable authors as Hall and Westlake. I should hesitate to question the view expressed by such high authorities were it not for the fact that it is clearly contrary to the decisions of our courts. It is true that the decisions in Re Look Tin Sing and United States v. Wong Kim Ark did not directly decide the precise point that persons born in the United States of aliens who are mere sojourners or transients are citizens of this country, since in each of these cases the parents were domiciled in the United States, so that it was not at issue. However, both of those decisions relied to a considerable extent upon the decision in Lynch v. Clarke, in which the person concerned, who was declared to be a native citizen of the United States, was born in this country of alien parents who were mere sojourners. What is more important, all of these decisions were based upon the theory that the law of citizenship of the United States was taken from the common law of England, and the latter makes no distinction between persons born in the country of alien sojourners and those born of domiciled aliens.

“But,” one may ask, “if a Chinese merchant and his wife are returning” from Europe to China via the United States, and a child is born to “the woman in San Francisco the day before they sail, is such child, by “the mere accident of having first seen the light in this country, a citizen “of the United States?” Absurd as it may seem, the child is indeed a citizen of the United States under the law of this country, although it is also a Chinese citizen under the law of China. Although it is unfortunate that such cases are possible, there is, on the other hand, much practical advantage in a system in which mere proof of birth in the United States is sufficient proof of citizenship. This is remarked upon by Judge Sandford in the opinion [Lynch v. Clarke] to which I have called attention.

It is certainly true that Flournoy acknowledges the narrowness of Wong Kim Ark‘s holding and that some treatise writers adopted a different view from his, but I think that is as far as it goes. He hardly concedes a “consensus” on the subject and embraces the dominant understanding of Wong Kim Ark as grounded in the common law rule articulated in Lynch v. Clarke. At the very least, it appears that the SG misspoke.

If there is another portion of the Flournoy article relevant to this point, I am happy to post that as well.