Are We Subjects or Citizens? Birthright Citizenship and the Constitution

Imprimis ^ | MARCH/APRIL 2026 | Edward J. Erler

[Retain Mike]

It is broadly agreed by constitutional scholars that the purpose of the Fourteenth Amendment was to constitutionalize the Civil Rights Act of 1866. Many in Congress initially argued that the passage of the Thirteenth Amendment in 1865 granted citizenship and the rights and liberties attached to that status. Others argued that there should be explicit legislation, which resulted in the Civil Rights Act the following year. Still others thought the Civil Rights Act was insufficient because future majorities could repeal it. This concern became the impetus for the Fourteenth Amendment, which constitutionalized the Civil Rights Act.

The citizenship clause was a late addition to the Fourteenth Amendment. It is evident that the Joint Committee placed importance on the jurisdiction clause, which meant, at a minimum, that not all persons born in the U.S. were automatically citizens. Subject to the jurisdiction does not simply mean, as is commonly thought today, subject to American laws or American courts. It means owing exclusive political allegiance to the U.S. In sum, what we today call birthright citizenship is a legacy of feudalism that was decisively rejected as the ground of American citizenship by the Fourteenth Amendment and the Expatriation Act of 1868. It is absurd to believe that the Fourteenth Amendment confers the boon of American citizenship on the children of illegal aliens.

[Dr. Franklin]

It’s like “a well regulated Militia” in the Second Amendment meant proper functioning, like a well regulated clock would keep time accurately. The issue is what the terms meant at the time they were enacted and not the modern meaning of the terms. It took an act of congress for the Native Americans to gain U.S. citizenship despite undoubtedly having been born on U.S. soil because they did not become U.S. citizens just by being born here.

[Inyo-Mono]

This the second time I have posted this to you. Guess you just ignore it.

https://freerepublic.com/focus/news/4373235/posts?page=35#35

[faithhopecharity]

THAT IS CORRECT

and ‘reside” is not the constitutional standard

the court has the duty to decide cases on the constitution...and if it chooses to ignore the constitution and instead decide cases on substitute language ,,,the court only increases the contempt it is so widely held in

theres no point in having a constitution if the court chooses to disregard and/or disobey it in deciding cases. such decisions are in violation of the justices’ oaths of office. they destroy the social compact of our nation. and they are at their core fundamentally immoral.

as Founder of our republic and POTUS after George Washington explained, ‘Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.’

there is a constitutional process available if anyone wishes to amend the constitution as it is presently written. that would be the moral and just way for ‘birthright citizenship’ advocates to proceed.
proceed.

[Political Junkie Too]

But clearly, illegals are arrested for everything from a parking ticket to murder and nobody questions “subject to the jurisdiction” because they are in fact subject to the jurisdiction. It is impossible for a STRICT CONSTRUCTIONIST to think otherwise. It is only possible to think otherwise if one thinks the Constitution can mean anything my subjective opinion wants it to mean.

The definition of "subject to the jurisdiction thereof" was defined in 1795 within the framework of naturalization. It even uses the language of "within and under the jurisdiction of the same."

Naturalization Act of 1795

Chap. ⅩⅩ.—An Act to establish an uniform rule of Naturalization; and to repeal the act heretofore passed on that subject.

For carrying into complete effect, the power given by the constitution, to establish an uniform rule of naturalization throughout the United States:

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise:—

First. He shall have declared on oath or affirmation, before the supreme, superior, district or circuit court of some one of the states, or of the territories northwest or south of the river Ohio, or a circuit or district court of the United States, three years, at least, before his admission, that it was bona fide, his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly, by name, the prince, potentate, state or sovereignty whereof such alien may, at the time, be a citizen or subject.

Secondly. He shall, at the time of his application to be admitted, declare on oath or affirmation, before some one of the courts aforesaid, that he has resided within the United States, five years at least, and within the state or territory, where such court is at the time held, one year at least; that he will support the constitution of the United States; and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and particularly by name, the prince, potentate, state or sovereignty, whereof he was before a citizen or subject; which proceedings shall he recorded by the clerk of the court.

Thirdly. The court admitting such alien, shall be satisfied that he has resided within the limits and under the jurisdiction of the United States five years; and it shall further appear to their satisfaction, that during that time, he has behaved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same.

Fourthly. In case the alien applying to be admitted to citizenship shall have borne any hereditary title, or been of any of the orders of nobility, in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility, in the court to which his application shall be made; which renunciation shall be recorded in the said court.

Sec. 2. Provided always, and be it further enacted, That any alien now residing within the limits and under the jurisdiction of the United States, may be admitted to become a citizen, on his declaring on oath or affirmation, in some one of the courts aforesaid, that he has resided two years, at least, within and under the jurisdiction of the same, and one year, at least, within the state or territory where such court is at the time held; that he will support the constitution of the United States; and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly by name, the prince, potentate, state or sovereignty, whereof he was before a citizen or subject; and moreover on its appearing to the satisfaction of the court, that during the said term of two years, he has behaved as a man of good moral character, attached to the constitution of the United States, and well disposed to the good order and happiness of the same; and, where the alien applying for admission to citizenship, shall have borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, on his moreover making in the court an express renunciation of his title or order of nobility, before he shall be entitled to such admission; all of which proceedings, required in this proviso to be performed in the court, shall be recorded by the clerk thereof.

Sec. 3. And be it further enacted, That the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization; and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident in the United States: Provided also, That no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain, during the late war, shall be admitted a citizen as aforesaid, without the consent of the legislature of the state, in which such person was proscribed.

Sec. 4. And be it further enacted, That the act intituled “An act to establish an uniform rule of naturalization,” passed the twenty-sixth day of March, one thousand seven hundred and ninety, be, and the same is hereby repealed.

Approved, January 29, 1795.

The above was codified in federal law here: 8 USC §1448. Oath of renunciation and allegiance, as well as in the surrounding sections of Subchapter III of Part II of Chapter 12 of Title 8.

Oath of allegiance

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.

The fact that this exists within the context of naturalization should not cause it to be discarded as irrelevant to the 14th amendment "subject to the jurisdiction thereof" discussion. This proves that the definition of "subject to the jurisdiction thereof" pre-existed the 14th amendment by 73 years.

What We Can Take Away From This

1. The 14th amendment begins with "All persons born or naturalized in the United States." This clearly covers the "or naturalized" part. 8 USC §1448 defines the "subject to the jurisdiction thereof" part when it comes to "or naturalized".

2. For the "All persons born" part, they also have to meet the definition of "subject to the jurisdiction thereof" requirement defined above.
   • For the existing children of naturalized citizens, the Act declares them to be citizens directly if they are under the age of 21 and residing in the United States.

   • For the future offspring of naturalized citizens, they become citizens at birth by virtue of their parent being citizens of the United States.

   • For for the newborn of citizens who were themselves born here, they are citizens by virtue of their parents never having ever been under the jurisdiction of any foreign nation.

   • For the newborn of permanent resident aliens who are permanently domiciled in the United States and foreswore their prior permanent domicile but did not take the extra step of naturalizing, the Supreme Court ruled them to be citizens in United States v. Wong Kim Ark.

   • For the offspring of people temporarily in the United States on nonimmigration visas, they attested on their visa applications that they have a permanent domicile in their home country that they have no intention of abandoning. They are still subject to the jurisdiction of their home country and fail the "subject to the jurisdiction thereof" of the 14th amendment as defined in 8 USC §1448. They are not citizens of the United States, they are citizens of the domicile of origin of their parent.

   • For the offspring of people who entered the United States illegally, they fail the "good moral character" requirement, and possibly the "whose fathers have never been resident in the United States" requirement. They are still subject to the jurisdiction of their home country and are not citizens of the United States. They are also citizens of the domicile of origin of their parent.

The 14th Amendment could not have been intended to grant birthright citizenship to the newborns of a class of people via less rigorous means than naturalization or naturalization and the gaining of citizenship will mean nothing.

-PJ

[mouske]

“... then have two thirds of the states agree with you and viola ... “

Please explain how your reference to “... a musical instrument of the violin family that is intermediate in size and compass between the violin and cello ...” supports your argument.

[Bruce Campbells Chin]

and ‘reside” is not the constitutional standard

This is a direct quote from Clause 1 of the 14th Amendment:

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.

Can someone be considered to "reside" in a location where their presence is illegal, and they are subject to lawful removal at any moment? If the answer to that question is "yes", then we lose and illegals will be considered citizens at birth. I'd suggest the correct answer is "no".

I think the "subject to the jurisdiction thereof" argument is simply weak. I believe the most plain reading of that Clause is that it excludes the children of diplomats and agents of foreign governments that have diplomatic immunity. That was a well-established concept at the time the 14th was written amendment and ratified, and those people are in fact not subject to the jurisdiction of the United States. I believe that is all that Clause means.

I also don't think the subjective intent of whomever drafted the amendment overrides the plain meaning of the words used. That is particularly true when interpreting constitutional provisions rather than legislation.

[ProgressingAmerica]

We’re going to get the Supreme Court’s decision soon.

[DiogenesLamp]

We’re going to get the Supreme Court’s decision soon.

Is that going to change your mind?

It's not going to change my mind. I think because the 14th is so badly written, they are gonna flub this.

[DiogenesLamp]

Yezzzz, but then you have to consider the fact that the fourteenth amendment was written, and passed by a select few politicians from a select number of states in order to continue punishing a select other few states which they had just invaded, burned, pillaged, starved and murdered. They had not a care in the world what future destruction their handiwork caused, any more than the past destruction they had achieved. You are, today, and seemingly forever into the somewhat dubious future of this country doomed to reap the benefit of there mindless posturing. Be sure to remember them in your prayers.

This is all accurate. I would add that the amendment was illegally ratified. Using armies to force people to vote the way you want is not what the framers envisioned for a ratification process based on consent of the governed.

[ProgressingAmerica]

It depends on if they cite the debates, I could have my mind changed. Due to all of the indoctrination, modernism can’t help us with the 14th.

But its not surprising you basically admit you’ll never put an end to your love affair with hard left wing judges though.

[DiogenesLamp]

But its not surprising you basically admit you’ll never put an end to your love affair with hard left wing judges though.

There you go again, putting *YOUR WORDS* into my mouth and pretending I said them.

I hate the left wing judges, but this doesn't change the fact that had the people writing the 14th amendment done a better job writing it, we wouldn't be dealing with these lunatic liberal judges.

Or if we had just required all amendments to be done with the process the framers laid out for amendments (which doesn't include armies pointing guns at the population) then the 14th would not be a problem.

You keep wanting to gloss over the Dictatorial method by which this amendment was forced on the people who did not want it.

But that is the main problem with the 14th amendment. It is not a product of our Constitutional form of government, it is a product of tyranny dressed up to look like it was democratic.

[spintreebob]

I am still not clear how “OFFSPRING of people who entered the United States illegally fail the “good moral character” requirement.”

Both the illegal parents and their offspring in the US clearly are subject to Parking laws, misdemeanor laws, felony laws, murder laws.

Unlike those with a tourist or temporary visa ... or diplomats... the illegals have not (to the US) sworn anything.

[Political Junkie Too]

the illegals have not (to the US) sworn anything.

The others are here by permission of the United States.

Illegal entrants did not seek, nor did they gain, permission to enter.

Adherence to laws is not "subject to the jurisdiction." In other US Code, that is called "within the jurisdiction of," which is a lesser statement.

My point is that it cannot be the policy of the United States that people who meet less rigorous criteria can offspring a citizen, while naturalized citizens must go through the naturalization process.

Getting a parking ticket is not a warrant to produce a citizen.

-PJ

[ProgressingAmerica]

"There you go again, putting *YOUR WORDS* into my mouth and pretending I said them."

There you go again denying that you think its poorly written. The authors of the 14th Amendment made it super simple when they stipulated that Indians were subject to the jurisdiction of a foreign power.

You put those words in your own mouth about trusting the judges, you don't get to be upset that I accurately capture your attitude about "its poorly written". If you want to claim its poorly written then own it that its poorly written. You trust hard left wing judges.

That's your position. It is what it is.

You don't have to make it complicated that a British Subject is subject to the jurisdiction of the British government, You are choosing to make it complicated that a British Subject is subject to the jurisdiction of the British government.

It is what it is. You trust the leftist judges. That's just the reality of our situation.

Yeah, you claim to hate the left wing judges, but if this was a court room I could not convict you. You would walk free out of the front door of the courtroom on an innocence of this accusation.

No jury could ever convict you of it. You hate the judges? Facts not in evidence. Now walk out of the courtroom.

Its incumbent upon you to start putting facts into evidence so we can get a conviction. Stop trying to have it both ways in your kabuki theater.

[spintreebob]

Forget all the mental gymnastics. The fact is that in theh 1820s-30s when my ancestors got off a big ship off the coast and went by small boat past Baltimore up the river into PA they had no immigration papers of any kind nor was it customary to have them. Before they were naturalized, some had babies with PA birth certificates. The interpretation at that time was that at birth they were citizens. Some of the immigrant parents eventually became naturalized citizens, some never achieved any papers. The same with some of their descendants in the 1940s-50s who came from Canada.

The fact is that pre-Pat Buchanan in the 1990s there was never any question at all that any all all babies born in the US were citizens by birth (except those of diplomats).

The fact is that this new twisting of the Constitution is new...very new for our 250 years.

In history we had the “No Nothings” we passed a law specifically against Chinese immigrants. At no time did those anti-immigrant groups have any other interpretation of the citizenship of the babies then that the babies were citizens. In fact, the fact that those babies were citizens was an argument against letting in the “unwanted”.

This new interpretation of the Constitution is not STRICT CONSTRUCTION OF THE CONSTITUTION. A new Pernumba (sic) has been discovered.

[Rappini]

Using British Common law hopefully won’t fly with our SCOTUS, I pray.

[Political Junkie Too]

No.

The Wong Kim Ark ruling was made in a period before the creation of immigrant and nonimmigrant visas. That legal concept didn't come into existence until the Immigration and Nationality Act of 1952.

Prior to that, the only tool the Court had was domicile law and the Naturalization Act of 1795. Your relatives had no papers because there were no papers. That is an example of taking the modern legal framework and trying to apply it to an earlier world that operated under different rules.

When your ancestors arrived, they were here to establish a new domicile, leaving behind their prior domicile. They didn't come here to stay at an habitual residence while still maintaining a domicile in their home country.

That's the legal distinction that drove emigration and immigration at that period in our history.

-PJ

[Retain Mike]

I hope so too. The author seemed clear on the point in the aticle.

The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms citizen or citizenship. The idea of birthright subjectship, as Blackstone readily admits, is derived from feudal law. It is the relation of master and servant; all who are born within the protection of the king owe perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under the common law is thus the doctrine of “perpetual allegiance.”

James Wilson, a signer of the Declaration of Independence and a member of the Constitutional Convention as well as a Supreme Court Justice, captured the essence of the matter when he remarked: “Under the Constitution of the United States there are citizens, but no subjects.” The transformation of subjects into citizens was the work of the Declaration and the Constitution. Both are premised on the idea that citizenship is based on the consent of the governed—not the accident of birth.

[spintreebob]

an earlier world that operated under different rules.

Stricti construction of the Constitution is now “different rules” ?

[Political Junkie Too]

Don't put words in my mouth. If you have an argument to make, make it with your own words.

I've clearly laid out my argument across many posts. Read them and debate them if you wish, but I've said my thoughts in my terms.

-PJ