Posted on 04/26/2026 1:50:01 PM PDT by 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.
(Excerpt) Read more at imprimis.hillsdale.edu ...
I have never denied it is poorly written. I am constantly insisting to you and others that it was poorly written.
Because it is poorly written!
You put those words in your own mouth about trusting the judges,
You are being deceitful. The only thing I ever say about those judges is that they suck, and you should never give them ambiguous or badly written laws which allow them to practice judicial activism.
The rest of what you said is incomprehensible to me, and probably to others as well.
Your gif image is entertaining but not relevant to this conversation.
It is not ambiguous.
A British Subject is subject to the jurisdiction therof of the British Government. Diogeneslamp is not having trouble with this statement.
The game is up.
And once again I will remind you that Senator Turnbull had to explain what that statement meant to the Senate. So it wasn't even clear back in 1866.
It was clear post 1866. Progressives didn't capture the schools until a few years into the 1900s and people came to understand it well when schools still actually taught. (separately) Congress even understood it which is why they passed the Indian citizenship act in the 1920s. This phrase "subject to the jurisdiction" was not lost until later.
That's how I know you're not over 100 years old. :-)
"but all the legal system is having trouble with that statement"
That right there. You see. You see, I put nothing in terms of words in your mouth. "???Having trouble???" That's trust language.
These are leftists pal. They are not "having trouble" with it at all. They desire a specific outcome and so they do not care about what it actually means. They are lying to you and you're over there sucking up the slop as fast as they can dish it out. You do trust left wing judges. I didn't force you to say they're having trouble.
There is no way that the 14th could be written that would satisfy left wing judges, the leftists would simply pick another point and do the same thing. They have an agenda. There is no "badly written" in the context of their agenda.
It really is all their fault. It is all their fault. Progressives are liars. Progressivism is America's Cancer.
I am laying all the blame on them because they deserve all of the blame. They have worked hard to earn all the blame and they are the rightful owners of said blame. But you say they are "having trouble". No. They are not having trouble. No trouble at all.
and
"but all the legal system is having trouble with that statement"
See. That right there. That is trust. I don't need to put any words in your mouth. You put the words there all on your own and its only been like 3 posts.
This is called cognitive dissonance.
The poor innocent judges are not "having trouble" at all. You absolutely do trust left wing judges and cannot fathom any sort of agenda. If you did fathom agenda you would not have worded it this way.
What I would write is the legal system is agenda driven with that statement. But that of course doesn't leave room for "poorly written", and you can't live without that meme.
I am trying to figure out how to explain this thing to you.
Not everyone in the legal system is a leftist deliberately trying to distort things. Most of them just accept what their professors tell them, and what other courts have said. The legal system is stuck on this idea called "precedent." They give ridiculous levels of respect to decisions prior judges have made.
You see, they don't try to think for themselves, or to re=litigate a case that has already been litigated, they just accept whatever the Judge presiding over it decided was the truth.
You seem to think it is a conspiracy of deliberately twisting. I think it's a conspiracy of being complacent, accepting "authority", and not thinking for yourself.
The legal people are like a herd of cows. They follow wherever the dominant members of the herd go.
Now if you want to say those dominant herd members have deliberately twisted things, I won't disagree with you, but it's harder to twist things when they are written more clearly.
There is no way that the 14th could be written that would satisfy left wing judges,
I disagree. They could have just said, "Former black slaves born in America are now citizens."
Hard to apply that to illegals.
Yes it is. You seem to be taking words and twisting them yourself.
Yes they are.
Yes.
They.
Are.
They (legal system) are all guilty. Everyone. Guilty, guilty, guilty. Rare people come out like A. Scalia and C. Thomas and others. Exceptions.
Look, I know we don't and won't agree so this is where we shake hands peacefully and go our separate directions.
I will always blame progressives first, forever. And you won't. We are just different this way. Progressivism is America's Cancer. I'm not kidding about that. Progressivism is America's Cancer.
"They could have just said"
There was and is no need to do so. Everybody understands that a British subject is subject to the jurisdiction therof of the British government.
Today's judges are not dum dum dummies, no such dumbing down of the phrase is required and even with that phrasing that's kind of condescending because that wouldn't even be for the judges anyways, who rumor has it go through decades of education to know what these things mean, that phrase you posited would be for 10 year olds playing minecraft which just leads to basically the same thing as above.
I will always blame progressives first, forever. And you won't. That's it. That is the foundational problem of why you and I keep ending up here.
Again the whole shaking of hands thing.
We should wait until SCOTUS issues.
If you want to do a strict constructionist view of this, you first have to understand the basic principles of strict constructionalism.
The main principle is surplusage canon. This means that every word or phrase must have its own meaning, that is, it can't be a redundant usage. It must earn its own place in the text. The assumption is that the drafters of the text had chosen their words purposefully and with intent.
Look at the opening sentence 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.
The debate that you present suggests that the phrase "and subject to the jurisdiction thereof" means that anyone who is in the United States is subject to the jurisdiction; they can get parking tickets, be put on trial for committing crimes, etc. The child who is born here becomes a citizen in their own right because they are subject to the jurisdiction of the United States at birth, not because of anything having to do with their parents.
But, the very concept of "born" implies that already. The act of birth immediately subjects one to the jurisdiction of their birth location in that they, too, can get parking tickets (although unlikely for another 16 years). "Subject to the jurisdiction thereof" does nothing to enhance the case of "born." Therefore, it must mean something else.
That "something else" is usually assumed to be the foreign diplomat carve-out. However, this fails the contextualist principle of parsimony, or textual economy, that is, saying things with as few words as necessary. Drafting "subject to the jurisdiction thereof" is broad and vague if the intended meaning is "except for diplomats and their families." Besides, the diplomat exception is a long-standing and well understood concept of the law of nations that doesn't need to be included in a citizenship clause. So again, the phrase must mean something else.
The only thing left that makes sense in a citizenship clause is being subject to the complete political jurisdiction of the United States, aka "allegience" to the United States and no other nation.
We know that Congress partially addressed this legislatively in the in the Immigration and Nationality Act of 1952 when they created distinct immigrant and nonimmigrant visas, but that is nearly a century after the drafting of the 14th amendment. We also know that the Supreme Court relied heavily on Black's Law Dictionary (published in 1891) when they decided the Wong Kim Ark v. United States case in 1898 on domicile law. But again, that was still 30 years after ratification of the 14th amendment.
What would have been available to the drafters of the 14th amendment is the Naturalization Act of 1795 where "allegience" and "within and under the jurisdiction of" are defined (see my post 44 above), and Vattel's the Law of Nations, where these concepts were also defined in detail.
Vattel treated what we now call domicile under the term "Settlement". From Vattel (relying on AI research):
Mapping Vattel:Vattel's §218: Settlement Defined
Vattel defines settlement in Book I, Chapter XIX as:
"Settlement is a fixed residence in any place, with an intention of always staying there. A man does not, then, establish his settlement in any place, unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However… a person who stops at a place upon business, even though he stay a long time, has only a simple habitation there, but has no settlement. Thus, the envoy of a foreign prince has not his settlement at the court where he resides."Vattel's §218: Natural vs. Acquired Settlement
Vattel then draws the same distinction Black's would later formalize as "domicile of origin" versus "domicile of choice":
"The natural, or original settlement, is that which we acquire by birth, in the place where our father has his; and we are considered as retaining it, till we have abandoned it, in order to choose another. The acquired settlement (adscititium) is that where we settle by our own choice."According to Vattel, a child born in the United States to a father whose natural settlement remains in France acquires France as his natural settlement by operation of this rule — regardless of where he was physically born.
Vattel's §219: Vagrants and Statelessness
Vattel then addresses the edge case that proves the principle:
"Vagrants are people who have no settlement. Consequently, those born of vagrant parents have no country, since a man's country is the place where, at the time of his birth, his parents had their settlement."This is the closest parallel to illegal aliens. They are not "vagrants" in Vattel's sense as they do have a settlement in their home country, but they are in the United States without permission. Vattel's "vagrants" cannot confer citizenship to their newborn who were born in a "simple habitation."Vattel's §213: Inhabitants vs. Citizens
Vattel also distinguishes categories that map directly onto the Wong Kim Ark framework:
"The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state while they reside in it... The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order."And finally, from Vattel's §212...
"In order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country."
Applying Vattel to the Wong Kim Ark ruling:
We must assume that the drafters of the 14th amendment were aware of the Naturalization Act of 1795, its requirement that one must give advance notice of intent to become an American citizen, and to renounce all allegiences to foreign countries and titles under oath. They included "born or naturalized" in the amendment, and lifted "within and under the jurisdiction of the same" from the Naturalization Act and condensed it into "subject to the jurisdiction thereof."
We must also assume that the drafters of the Naturalization Act of 1795 were aware of Vattel's Law of Nations and their definitions of settlement, vagrancy, etc., as it applied to allegience, citizenship, and naturalization.
We must also assume that the drafters of the 14th amendment were aware of the principles of surplusage and textual economy.
All of these assumptions must be combined to eliminate impossible interpretations of "subject to the jurisdiction thereof" and accept the remaining interpretation: that the phrase means complete and total allegience to the United States and no other nation.
-PJ
[Quoting Progressing America] There is no way that the 14th could be written that would satisfy left wing judges,
They could and they did. The Framer said explicitly that his intent was not to change the law as it was, but to place it beyond the power of the Legislature to change.
14A Senate Debate:
Mr. HOWARD This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.[...]
Mr. HOWARD. I was a member of the same committee, and the Senator's observations apply to me equally with the Senator from Maine. We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by the roots and destroy it, and expose the freedmen again to the oppressions of their old masters.
As for the law of the land already, birthright citizenship was the law of the colonies pursuant to British common law, and upon statehood it was carried forward into the States.
While the history is patently obvious that immigrants came to the United States and their children born here were not naturalized, but considered to be natural born citizens, the opinion in Lynch v. Clark in 1844 makes perfectly clear what the law was prior to 14A.
If birthright citizenship were not the law prior to 14A, then all those unnaturalized children of immigrants never became citizens. And their children never became citizens. And the children of their children of their children never became citizens. Etc.
Lynch v. Clark, 1 Sandf. 583 (1844), as published in New York Legal Observer, Volume III, 1845:
It is an indisputable proposition, that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States, and, indeed, before the discovery of America by Columbus. By the common law, all persons born within the ligeance of the crown of England, were natural born subjects, without reference to the status or condition of their parents.[...]
And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. "No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President," &c. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the rule of the common law, in force when the constitution was adopted, he is a citizen.
14A clearly expresses what its framer, Senator Jacob Howard stated as his intent. Birthright citizenship has been the law of this land since before the DoI. It was not questioned until 2008. There was no such thing as an illegal alien at the time 14A was adopted. 14A predates the first U.S. immigration control law. It was not possible to be an illegal alien when there was no law to violate.
Saw this a couple of days ago. I expect you will reject the point the author makes regarding subjectship.
Why would I disagree with this?
Maybe there are individual things in it that I didn’t fully recognize, but he talks about how Indians were not “subject to the jurisdiction therof” of the U.S. and therefore the 14th didn’t apply to them.
What am I missing, what is your hook? If you would like to discuss further this Imprimus let me know.
This seems to me like this Imprimus will just be another item you abandon like how you abandoned Raoul Berger’s book “Government by Judiciary” after you discovered that the book advocated for 14thoriginalism.
I addressed it to woodpusher, and I just added you as a ping.
Fair enough.
Saw this a couple of days ago. I expect you will reject the point the author makes regarding subjectship.
His 2008 anti-Obama rant runs into a common problem—it requires that the understanding of the law of the last two and a half centuries be overturned.
The transformation of subjects into citizens was the work of the Declaration and the Constitution.
This is just plain silly. If the Constitution transformed subjects into citizens, what were they from 1776 to 1788? Independence transformed the subjects into citizens, and that happened well before the Constitution.
We have somehow come today to believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction. But this renders the jurisdiction clause utterly superfluous and without force.
This is gross misstatement/distortion. We do not believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction. The Senate debate on 14A made perfectly clear in words and intent that the children born to the families of accredited diplomats were not born subject to the jurisdiction of the United States. There is nothing superfluous about the jurisdiction clause.
https://fam.state.gov/FAM/08FAM/08FAM030101.html#M301_1_1
[State Department, Foreign Affairs Manual]
8 FAM 301.1-1 INTRODUCTION
[excerpt]
d. “Subject to the Jurisdiction of the United States”: All children born in and subject, at the time of birth, to the jurisdiction of the United States acquire U.S. citizenship at birth even if their parents were in the United States illegally at the time of birth:(1) The U.S. Supreme Court examined at length the theories and legal precedents on which the U.S. citizenship laws are based in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). In particular, the Court discussed the types of persons who are subject to U.S. jurisdiction. The Court affirmed that a child born in the United States to Chinese parents acquired U.S. citizenship even though the parents were, at the time, racially ineligible for naturalization;
(2) The Court also concluded that: “The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
State v. Manuel, 4 Devereux and Battle 20, 24-26 (1838) [North Carolina Supreme Court]
According to the laws of this State, all human beings within it who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman law between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution all free persons born within the dominions of the king of Great Britain, whatever their colour or complexion, were native born British subjects—those born out of his allegiance were aliens. Slavery did not exist in England, but it did exist in the British colonies. Slaves were not in legal parlance persons, but property. The moment the incapacity—or disqualification of slavery was removed—they became persons, and were then either British subjects or not British subjects, accordingly as they were or were not born within the allegiance of the British king. Upon the Revolution, no other change took place in the law of North Carolina, than was consequent upon the transition from a colony dependent on an European king to whom a free and sovereign state. Slaves remained slaves. British subjects in North Carolina became North Carolina, free-men. Foreigners until made members of the State continued aliens. Slaves manumitted here become freemen—and therefore if born within North Carolina are citizens of North Carolina—and all free persons born within the State are born citizens of the State.A few only of the principal objections which have been urged against this view of what we consider the legal doctrine, will be noticed. It has been said that by the constitution of the United States the power of naturalization has been conferred exclusively upon Congress—and therefore it cannot be competent for any state by its municipal regulations to make a citizen. But what is naturalization? It is the removal of the disabilities of alienage. Emancipation is the removal of the incapacity of slavery. The latter depends wholly upon the internal regulations of the State— the former belongs to the government of the United States. It would be a dangerous mistake to confound them.
It has been said that before our Revolution, free persons of colour did not exercise the right of voting for members of the colonial legislature. How this may have been, it would be difficult at this time to ascertain. It is certain however that very few, if any, could have claimed the right of suffrage, for a reason of a very different character than the one supposed. The principle of freehold suffrage seems to have been brought over from England with the first colonists, and to have been preserved almost invariably in the colony ever afterwards. In the act of 1743, ch. 1, (Swann’s Revisal, 171,) it will be seen that a freehold of fifty acres was necessary to entitle the inhabitant of a county to vote, and by the act of 2d Sept, of 1746, ch. 1, Ibid. 223, the free holders only of the respective towns of Edenton, Bath, Newbern and Wilmington were declared entitled to vote for members of the Colonial Legislature. The very Congress which framed our constitution, was chosen by freeholders. That constitution extended the elective franchise to every freeman who had arrived at the age of 21, and paid a public tax; and it is a matter of universal notoriety that under it, free persons without regard to colour, claimed and exercised the franchise until it was taken from freemen of colour a few years since by our amended constitution. But surely the possession of political power is not essential to constitute a citizen. If it be, then women, minors, and persons who have not paid public taxes are not citizens—and free white men who have paid public taxes and arrived at full age, but have not a freehold of fifty acres, inasmuch as they may vote for one branch and cannot vote for the other branch of our legislature, would be in an intermediate state, a sort of hybrids between citizens and not-citizens. The term “citizen” as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people—and he who before was a “subject of the king” is now “a citizen of the State.”
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