the court this is a classic case of constitutional interpretation the scope of the citizenship clause is answered by examining its text structure history and purpose which was to constitution preexisting common law rule and put the question of citizenship by birth on us soil beyond the political power the court should follow the original meaning of the citizenship clause here because this case presents issues of first impression not circuits so the cases addressing issues in the philippines actually addressed a somewhat different question which was what happens to issues of citizenship upon exit from the us sovereignty so those  same question of again a slightly different it was what was the status of these individuals many decades after independence and upon independence the people of the philippines and the people the united states through a treaty that was ratified by the senate recognize that the people the philippines would become citizens of the republic of the philippines surrendering their their their of agency united states on if your constitutional argument is correct no legislation could have taken away their birthright citizenship happened in the case the philippines which was a voluntary surrender citizen ship the philippines who wanted to be independent from the united states for many decades and so upon independence there was a tree that was ratified by making the key here is what the determination that was made was to accept from the united states sovereignty and so that was it is it what you want on or the political decision of the philippines that's your point yes that to the whole then the question is why don't we honor the political view of small and four expressed unequivocally that they wanted to be part of the sovereign territorial jurisdiction of the united states those agreements were later ratified through congressional statute and there's also a senate treaty in one thousand nine hundred recognizing u sure and questions about the right of citizenship for someone born within the sovereign territory limits is a question that's answered directly by the citizenship clause the purpose of the citizenship clause was to remove these very questions from the legislative power so that future congresses future majorities have been consistent with your position in the philippines your position in the philippines is simply what the supreme court held in robbing versus board which is upon independence nebraska eight hundred ninety two saying that the general was quote manifestly the nationality that happens of territory become that of a government of whose dominion they pass going back further there were a number of supreme court cases examining these issues of what that's consistent with argument of the citizenship clause that transfers of sovereignty have consequences in terms of citizenship and said yes the question here is much simpler than the question presented  philippines cases in so far as the citizenship clause directly answers the question of citizenship by birth within the dominion and allegiance of the united states this is the test that the supreme court l two years before american samoa became part of the united states and that decision looked closely at the original meaning of the of of of the phrase united states in the citizenship clause and the purposes of the citizenship clause if i could just turn to those phraseology section to his respect with respect to the portion of it they use the phrase in the several states and so the significance of this distinction is highlighted by looking to the constitutional history around the drafting of dates of the fourteenth amendment and during distinction quote the second section refers to no persons except those in the states of the union but the first section or first persons everywhere whether in the states or in the territories or in the district of columbia just a few years after the it rest the argument that those who had been born in resided always in the district of columbia or in the territories but within the united states were not citizens this was a central question for the reconstruction the congress to consider at the time because  fourteenth amendment was ratified nearly half the land of the united states was part of the u s territory of the twenty largest states today twelve of them were actually territories in eight hundred sixty eight and of the thirty seven states that existed at the it's unambiguous that you think the text is is clear we've been talking about two things one what in the united states and the other is within the jurisdiction which seems to have something to do or not such a person who was clearly born within the continental united states could also was also a citizen yes so the subject to the jurisdiction language look looking at the constitutional history of the fourt was not a point that was contested and argued by the parties in the case or addressed and contested by the court and surely if they had not understood birth within a territory to denote citizenship that would have been a much easier grounds the supreme court made very clear that the citizenship causes quote to be interpreted in light of preexisting common law principles governing citizenship and as an alchemy as an want to mark the principles that come forth our birth within the  recognized in other cases and then allegiance being tied to the question of subjects that jurisdiction and its uncontested here in this case that american small is subject to the jurisdiction of the united states and it's also one contested that american of self governance in your view does that impact at all on this question allegiance and other words you know if if you are dealing with a territory that has its own  through a few other executive and presidential actions so if anything territory is as with the district of columbia or even more subject to the jurisdiction of the united states than the states are because congress exercises plenary power  over american samoa as it does all these other territories so it's really undisputed that congress could pass laws regarding their territorial structure past criminal statutes that can be enforced by the courts and the history of respect to certain questions so the insert cases address questions of territorial governance which is which makes sense given that congress has actually sort exercising the property cause of plenary power and also address questions of criminal did talk about citizenship they talked about it primarily as from the perspective of entry into the united states sovereignty and so when the united states  what it's simply allowing for play in the joints for the application of certain constitutional rights where those rights can raise practical considerations that may require kind of interest balancing to reach the result in the case what's notable among is it fair to show excuse me for interrupting that fair is it fair to say that the principle of constitutional law that applies here coming from the supreme court in our own cases is whether or not it's a recognise a particular constitutional right in an unincorporated territory so that's the courts that's reports tested in circuses in this courthouse and can be mourned so that is the law is it not it is a law that whether or not if that's the law whether it's an almost isn't it fair to say that here is the one situation we have before we're in unincorporated territory does not want their citizenship by birth on us soil from the legislative power for these kinds of majorities to change this was after the civil war this is a constitutional provision which you say can't be judged as whether it's anomalous or not well then just to give you a little more historical context your nationality question that this one constitutional provision is superior to all other constitutional provisions and therefore we do not judge you as whether it's anomalous or not to extend it to an unincorporated territory incorporation doctrine that this court's framework in can be more than would govern that courts framework requires a factual on the first on the first point requires a holding that the right to citizenship is not a fundamental right which we argue that it is i so i think that in answering that question you can look at the example of other territories where they are recognized as birthright citizens and it's not contested that the church wrong corporation doctrine continue supplying this places by legislation  congress can create these kinds of courts in the territory and so that that was a question of squarely within the property clause in the territory clause of the constitution rather than turning on this distinction but regardless it was a due process question  recognized birthright citizenship then i wonder how that case could have been decided the way it was so as accord explained in that kills normally allow the secretary of interior to have cases which as you as you said looked into some of these questions they didn't work at the question of the citizenship cause application of of one of applying the church or incorporation doctrine so the court in that case actually made expressly clear  a moment and then they said quote we were realign into cases only determine the meaning of the phrase in the united states and then they went on to say we need not decide whether citizenship is a fundamental right which would extend its own force up to a eventual fire actual five justice majority and door to door made the point of the exercise of the power expressly granted to govern the territories is not without limitations and fines limits and express prohibitions on congress not to do certain things this was  the decision of actually five just as a in the answer cases and it's a point that goes to the importance of this isn't your cause which the supreme court has repeatedly that's described as being quote a limitation on the powers of the national government this isn't the same kind of provision as some of these other issues that were considered in the answer cases where these kinds of practical difficulties can be balanced and taken into account because the because the meaning of the citizenship clause is so clearly tied to th arguments of the governments arguments and this case actually very much more closely to the dissent in dilema which argued quote puerto rico occupied a relation to united states between that of being a foreign country absolutely and of birth declared by the constitution to be sufficient and complete right to citizenship so then porton tests here held by and held by the court in one term aren't embraced by the tax structure and constitutional history as well and subject to the jurisdiction of the united states when those two prongs are met as they are here when there's a political decision to bring an area within the territorial sovereignty of the united states that decision has consequences and for those reasons of we congressional action which provides clear defined parameters in fact this court need look no further than the actual types of the amendment issue in this case which we've already heard 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 minus here arguably are subject to the jurisdiction of united states but were not born in the united amendments that were passed particularly the thirteen which chose to extend the abolition of slavery involuntary servitude to not only the united states but to any possession health patients in the developed some twenty element of constitutional law yes your honor so if the court determines that the plain language is not adequate then the insular cases which still remain are good laws as plaintiffs must concede and every federal court to address these issues whether the fourteenth amendment confers citizenship on an unincorporated outlining his action has held that if it does not then that will not will not happen here on earth if american samoa had had not come in on the side of a point of severe that that would present a different question to the government if that were the case presumably american other words if it's just the language right now what is the you know if if yes changing their mind would make a difference if it's just the language would be a minute no fat yeah in other words you're so that you say well that would be a different you know if they agree but if it's german by the language then they're either within the united small came in and said we think our citizens are american citizens and congress then it won't recognize government of american samoa were to attempt to attain birthright citizenship for its people and there it was it was unable to do so through obstruction of congress and the executive there would be a potential for a case for this court to invest fair what is present is a situation where the supreme court's opinions in downs as well as every other federal court to examine the issue have determined that  the birthright citizenship can only be extended to unincorporated possessions like american samoa through rational action american civil and government and the american civil and people this lawsuit really does represent what could be an existential threat to their way of life to their culture and it's important because i'll make is have are you know that why are you worried about that the supreme court samoan people shouldn't have to justify every aspect of their culture to the words having many years ago joined the united states someone thousands of session with this understanding that they would be allowed to preserve these paramount islands in the briefs we grade out some examples like mandatory prayer or use white things like having an opera house of legislature that's composed of samoan sheaves all of those things might not be consistent arguably with american citizenship but all those things are very important to civil and people too even if we can say don't worry about communal land ownership and there are reasons why someone would be worried about that it's no answer to say that from this point forward you'll be defending each of your cultural practices and words in washington subsisted for more than one hundred years now there's really no legal basis for extending birthright citizenship your honor there so when you talk about the case law since the insular cases since american since the american government started taking territories and really the recognition there is almost unbroken that the test is whether a territory is incorporated that is predestined originated your honor or whether it is a possession or dependency of the united states is the case of american samoa council seem to recognise that the issue would be whether it's anomalous and he argued well the last of factual issue there should be sent similar to self determination and sovereignty than having to defend this lawsuit in the first place and on that point your honor i know that there were there was testimony given king vs more but that case is from one nine hundred seventy five and you think odel the sort of change in the armor arm approach to this question i don't think i think who built recognise changes in the approach of the question because between one nine hundred seventy five one thousand versus where we should we pay any attention to the there are people who are kind of are here they do view this as a threat and they're urging these items for example to seek other ways of changing of addressing their injury their legislative options available your congressman a monster who's newly elected so your view is the anomaly is you would not be amenable to a factual determination we can assume that as a matter of law they didn't need anomalous to recognize birthright citizenship over the objections  the government on some oh that's right your honor and what about the question i asked counsel suppose the government of samoa was on the side of the plaintiff so you couldn't be dispositive your honor if the government of american samoa was on the side of the plaintiffs that would be a factor it's anomalous to grant citizenship over the government's wishes but there are conceivably circumstances i think where people within the within american samoa could saying for whatever reason and this isn't the case here that the government is not representative that there is oppression you know it would be different cases counsel for the united states said i don't want to close the door on the fact that the government's use would be dispositive so there are other remedies that iran and his counsel to the united states pointed rico have filed an amicus brief on the side of the plaintiffs in this case i don't know what to make of that factor of children the fact is the status of we're rico with four million people and its history with the united states is very different interested in this topic but i hope that by standing here as an interviewer for the american small government we can point out that this isn't just an academic exercise these this is the interesting as a war but it's not it's something that affects people's day to day lives in s would certainly agree with our our colleagues that this is not an academic issue for our plaintiffs who've been denied the right to vote because of their status who have lost their jobs because of this their status who we represent one veteran who has been that denied the right to bear arms because of his status so it's not an academic question for us either going back to what you had said about the history of american small support for these these questions  that was not to be the case for several decades to reckon not to have the full recognition of citizenship that they have been part of the initial agreement and in fact this legislation went so far should be approved by the u s senate twice unanimously only to position today yeah and so their position has changed and so i guess we should have just broader case fifty years ago but that then highlights the challenges of using these kinds of practical considerations and interests balance balancing one interpretating the meaning of a constitutional provision that was specifically designed and tax and purpose to her move those kinds of questions from political determination you agree that now the issue is trial the fall within the answer cases perhaps so but even then the question of what is anomalous has chimed on the kind of practical considerations of of how well you know how something can practically or logistically be handled how it and how it's to the district court where as has occurred in verses andrus there was an opportunity for testimony from leaders on both sides of the issue in american samoa and ultimately the court sided with the trial i understand your position that this is not an academic exercise but i think there's a question that judge didn't tell ask and i wasn't sure if we ever got an answer to that question and i think it's important and that is if we were to agree with you and found that birth right citizenship magically here wouldn't that bring in all of the constitution and they would stop talking about whether anything was practical or anomalous whether there were concerns about the samoan way of life it would seem that constitution would simply apply in its entirety is that correct so i w just answer that question i would say that the concerns are have been raised by the intervenors of those concerns of existed and been expressed repeatedly prior to our case being brought forward so those concerns are are related to what the constitution means and what the constitution requires not they don't turn on issues of citizenship or non citizen national so our position is that in recognizing reversed right citizenship the fundamental the application of the constitution is a general matter that the question that case was whether there are many elimination laws were constitutional and so i guess i'm not sure quite worrying a lot on your line that would fall but the court did express we recognize that regardless of whether it  incorporated or unincorporated territory the fundamental rights of equal protection and due process require strict scrutiny of laws that create these kinds of racial germination nonetheless the court in that case of how then based on a compelling law would have to say what the compelling interest is there and if it can if it can pass a compelling interest test then it would be unconstitutional in american samoa the court there recognize that there is a compelling interest but our point is simply that these questions about a retraction due separate questions from the question of the citizenship clause which really is unique right because it's the only enumerated right which is specifically tied to whether an area is subject to the dish or a sovereignty of the united states these other these other americans modern recognizes incorporated territory the question would have been absolutely clear that of course the right to a jury trial flies there it didn't it didn't fall into the territorial clause in that same way