Replies

Thomas Jefferson was not involved in drafting the 14th amendment, and he was not the source of the quote

Of course Thomas Jefferson was not involved in drafting the 14th amendment: He died July 4, 1826.

However, John P. Foley, in The Jefferson Cyclopedia: A Comprehensive Collection of the Views of Thomas Jefferson, (New York: Funk and Wagnalls Company, 1900; p. 32), directly quotes Jefferson as writing, "Aliens are the subjects of a foreign power." The drafting of the Citizenship Clause of the 14th Amendment commenced in 1866, a mere 20 years after Jefferson's death.

It appears eminently reasonable to infer that Sen. Jacob Howard (R–MI) had Jefferson's maxim in mind, when he initiated debate on a resolution that would become the Citizenship Clause of the 14th Amendment in 1866. In defining citizenship by birth, Howard explained:

“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."

Sen Trumbull, sponsor of the 1866 Act, offered his definition of "subject to the jurisdiction":

"What do we mean by 'subject to the jurisdiction of the United States?' Not owing allegiance to anybody else. That is what it means."

How Jefferson defined the term "alien" does indeed make a difference, if his understanding was reflected in the thinking of the Framers of the 14th. And the case is clear to me that it was.

Take the case of the Indian tribes. At the time of ratification, the Indian tribes were considered to be sovereign nations, owing allegiance to their respective tribe, not to the United States. Therefore, they were excluded from U.S. citizenship — on the basis of their alien status. The Citizenship Clause could not be applied to them, for they were regarded as "subjects of a foreign power."

Sen. Trumbull clarifies this:

“It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’”

This was the understanding at the time the 14th Amendment was framed and ratified. (It matters not at all that American Indians received U.S. citizenship by statute, not by express operation of the 14th Amendment, in 1924.)

Jon Feere, in the CIS study I keep citing, has this to say (p. 8f):

If the question of “jurisdiction” boils down to one of allegiance, and under U.S. jurisprudence allegiance is a voluntary association, on what basis can a newborn child be found to have chosen an allegiance to his parent’s country over allegiance to the United States, or vice versa? It was understood by the authors of the 14th Amendment that jurisdiction as to the child would be imputed from the status of the parents.

Sen. Reverdy Johnson (D-Md.) explained that parents must be “subject to the authority” of the United States if their children born here are to be classified as having acquired the status of U.S. citizen:

“Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power…shall be considered as citizens of the United States. … [T]he amendment says that citizenship may depend on birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.” (emphasis added)

Are illegal aliens subject to the authority of the United States? Not in the way contemplated by authors of the 14th Amendment. As explained earlier, the authors of the 14th Amendment explained that being subject to the jurisdiction of the United States means not owing allegiance to anybody else.

I'll just leave it there for now. Do your homework, CA Conservative!

I'll just leave it there for now. Do your homework, CA Conservative!

Sorry, but you are still making two assumptions, at least one of which is disputed by the text of the quote in question. The first assumption is that the author of the quote had the same definition of aliens in mind as that of Jefferson. Maybe he did, maybe he didn't - there doesn't seem to be any definitive way of showing that. And the reason I said Jefferson's definition is irrelevant is because when interpreting any law that is ambiguous, the courts look at the legislative history and at the contemporaneous comments of the drafters of the law to provide context. They don't go back to statements of men long dead at the time the law was drafted unless the author of the law specifically references such as a source or authority for the law.

The second assumption is that, even if the author has Jefferson's definition of aliens in mind that it would somehow change that statement to mean 3 different groups, rather than one group. The structure of the sentence still reflects an intent for the term "aliens" to modify or clarify the term "foreigners". Actually, your argument that the term "aliens" refers to a particular class of foreigners supports the idea that the author only intended to restrict birthright citizenship to the class that he referenced, namely the families of ambassadors and foreign ministers. So this argument still does not support the idea that you are making.

Now I have heard others make better arguments about the intent of the drafters of the 14th that would argue against birthright citizenship. My only point is that focusing on this one quote undermines the argument, rather than supports it.