Fitisemanu v. United States: Brief of Citizenship Scholars as Amici Curiae in Support of Petitioners
Document Type
Brief
Publication Date
5-21-2022
Abstract
Amici are scholars of law, history, and political science who have written on the history of American citizenship. Amici’s names, titles, and institutional affiliations (for identification purposes only) are listed in Appendix A. Amici have a professional interest in the doctrinal, historical, and policy issues involved in this Court’s interpretation of the meaning of citizenship in the United States. Moreover, amici have a professional interest in historical conceptions of citizenship before and after the ratification of the Fourteenth Amendment’s Citizenship Clause, modern notions of citizenship and non-citizen national status, and their impact on policy today.<\p>
Amici submit this brief to provide insight into the historical record relating to three primary points relevant to this case. First, although the original U.S. Constitution did not identify any qualifications for citizenship, its references to citizenship are best understood against the principle inherited from English common law that United States v. Wong Kim Ark, 169 U.S. 649, 667 (1898) termed “jus soli”—the right of the soil. Second, the “non-citizen national” designation imposed on American Samoans had no precedent in antebellum America. Rather, that designation is an unconstitutional exception to the principle of jus soli citizenship, invented by administrators and legislators operating under racist presuppositions during America’s territorial expansion at the turn of the twentieth century. Third, and contrary to the government’s suggestion in the court of appeals, see Brief for Defendants-Appellants at 29, Fitisemanu v. United States, No. 20-4017 (10th Cir. Apr. 14, 2020) [hereinafter Fitisemanu 10th Cir. Defs. Br.], the same rule does not control whether American Samoans and millions of Filipinos are U.S. citizens. The American Revolution firmly established the enduring default rule of Anglo-American law that a change of sovereignty over a territory extinguishes the allegiance of the population to the former sovereign and establishes its allegiance to the new sovereign. It is this rule that causes the population of the Philippines to be Filipino citizens rather than American citizens. Recognizing that people born in American Samoa are citizens under the Fourteenth Amendment would have no impact on the citizenship of people born in the Philippines.<\p>
Recommended Citation
Erman, Sam, "Fitisemanu v. United States: Brief of Citizenship Scholars as Amici Curiae in Support of Petitioners" (2022). Appellate Briefs. 84.
https://repository.law.umich.edu/briefs/84
Comments
Amicus: Bosniak, Professor Linda S.; Elias, Professor Stella Burch; Hammond, William Gardiner; Collins, Professor Kristin; Kenison, Honorable Frank R.; Erman, Professor Sam; Green, Christopher R.; Whiten, Jamie L.; Hester, Professor Torrie; Kerber, Professor Linda K.; Nunez, Professor D. Carolina; Perl-Rosenthal, Professor Nathan; Price, Professor Polly J.; Candler, Professor Asa Griggs; Ramsey, Professor Michael; Salyer, Professor Lucy E.; Smith, Rogers M.; Browne, Christopher H.; Unterman, Professor Katherine R.; Venator-Santiago, Professor Charles R.; Williams, Professor Ryan C.