an earlier world that operated under different rules.
Stricti construction of the Constitution is now “different rules” ?
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
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