Wow. How can anyone get so many things so wrong. You are putting forth the views of the Left. Where to begin.
It is. It was written to clearly extend the rules already in effect for everyone else to the newly freed slaves. As was acknowledged at the time, it only formalized what was already true for everyone else.
“Subject to the Jurisdiction Thereof.†The first sentence of Section 1 of the 14th Amendment of the U.S. Constitution, also known as the Citizenship Clause, reads as follows:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.â€
This clause contains two requirements for obtaining U.S. citizenship by birth: (1) the birth must have occurred within the United States; and (2) the person born must be subject to the jurisdiction of the United States. The second requirement imposes a consensual qualification to birthright citizenship. Advocates of granting automatic citizenship to children of illegal aliens almost always focus only on the first requirement, arguing birth on U.S. soil, alone, guarantees U.S. citizenship. These advocates also argue that “subject to the jurisdiction†simply means being susceptible to police authority (i.e. being required to follow laws and pay fines for violations). But such an interpretation creates a redundancy in the 14th Amendment, as all people born in the United States are subject to the laws of the land. Accepting the premise that “subject to the jurisdiction thereof†simply means being “subject to police power†turns a critical and carefully-written portion of the Citizenship Clause into a redundancy. Unquestionably, basic statutory interpretation requires one to view each clause as a distinct and separate requirement, and no honest jurist would read a redundancy into a statute, much less a constitutional amendment.
Why even include subject to the jurisdiction thereof? Why not just say anyone born on US soil?
The inquiry, then, is focused on the intent of those who wrote the clause and whether a child born in the United States to an illegal alien is a person who is “subject to the jurisdiction†of the United States, and consequently an automatic citizen of the country. No one doubts that the main purpose of the 14th Amendment was to ensure that freed slaves would be recognized as U.S. citizens. Nevertheless, some argue that children of illegal aliens should enjoy the same privilege. But when the 14th Amendment was enacted, there were few limits on immigration and very few persons in the United States would have been residing here illegally. Moreover, given the costs and risks of long-distance transportation, tourists and other temporary visitors were limited in numbers. There is simply no direct evidence that Congress wished to confer citizenship on the children of temporary or illegal visitors, but there is some evidence that they did not.
The most informative source on the intent of Congress is the Congressional Globe, the earlier version of today’s Congressional Record. The development of the language that made it into the 14th Amendment is revealing. At the outset, the authors of the 1866 Act and the 14th Amendment understood that a certain amount of respect or allegiance to the United States was expected of all persons who found themselves within our borders, even from foreigners visiting temporarily, and that this alone would not justify a grant of citizenship. During debate on the 1866 Act, Sen. Lyman Trumbull (R-Ill.) explained that his goal was “to make citizens of everybody born in the United States who owe allegiance to the United States,†but noted a lack of clarity in such a phrasing, explaining:
“I thought that might perhaps be the best form in which to put the amendment at one time, ‘That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens;’ but upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer.â€
The “sort of allegiance†owed by an alien “temporarily resident†in the United States, legally or illegally, would seem to include a duty to follow basic laws, but not the duty of loyalty demanded of a citizen. While advocates for the rights of illegal aliens argue that this duty to obey our laws (and an alien’s susceptibility to being arrested for a violation of our laws) makes an alien “subject to the jurisdiction†of the United States, that was not the view of those who framed the Citizenship Clause. In the 1866 Act, any such interpretation was precluded by using the phrase “not subject to any foreign power.â€
Soon thereafter, the phrase “not subject to any foreign power†would reappear as “subject to the jurisdiction thereof†in the 14th Amendment. Thus, while the language of the 1866 Act distinguished aliens on the basis of their continuing obligation of allegiance to a foreign power, the 14th Amendment focused mainly on the alien’s degree of allegiance to the United States. However, in both cases, the purpose was to avoid the granting of citizenship to people with only a temporary sort of allegiance. Opposition to granting citizenship to individuals subject to a foreign power was strong throughout the Senate.41 It does seem that the framers of the Citizenship Clause had no intention of establishing a universal rule of automatic birthright citizenship.
On May 30, 1866, Sen. Jacob Howard (R-Mich.) initiated debate on a resolution that would become the Citizenship Clause of the 14th Amendment. In defining citizenship by birth, Sen. 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.â€
Whether Sen. Howard thought that the “jurisdiction†clause would exclude only the children of diplomats or some larger category of “foreigners†has been much debated. In fact neither side of the debate can rely exclusively on Sen. Howard’s statement since the statement (or the reporting of the statement) is grammatically incomplete, and one’s interpretation depends on how one chooses to complete the grammar. When the senator said…
“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…â€
he may have meant either:
“This will not, of course, include persons born in the United States who are foreigners, aliens, [or those] who belong to the families of ambassadors or foreign ministers…â€
…or:
(2) “This will not, of course, include persons born in the United States who are foreigners [or] aliens who belong to the families of ambassadors or foreign ministers…â€
The former interpretation would support the narrative that children born to illegal aliens are not considered citizens, while the latter would deny U.S. citizenship to only those born to family of visiting government officials. Since we cannot know for sure what Sen. Howard meant to say, the most one can conclude is that he did not expect that every U.S.-born child of an alien would automatically be made a citizen by the 14th Amendment. Interestingly, as noted below, the Supreme Court, even when expanding the scope of birthright citizenship, has assumed the first and more exclusive reading.
There is a better record of how the sponsors expected the 14th Amendment to apply to tribal Indians. Sen. Trumbull, sponsor of the 1866 Act, offered his definition of “subject to the jurisdiction:â€
“What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means.â€
Sen. Trumbull went on to explain how this clause might apply to American Indians:
“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.’â€
Sen. Trumbull’s explanation hearkens back to the 1866 Act and its exclusion of persons “subject to any foreign power.†Today, it cannot be denied that an illegal alien is, under law, a citizen of a foreign country and therefore subject to that country’s jurisdiction. An illegal alien owes at least some amount of allegiance to their home country, if not complete allegiance. They are not under any sense of the law a citizen of the United States. As explained by Thomas Jefferson: “Aliens are the subjects of a foreign power.†Although, as a result of federal statutory law, all native-born Indians are regarded as citizens today, at the time of the 14th Amendment Indian tribes were treated as foreign powers, and members of the tribe were presumed to owe their first allegiance to the tribe. There was no need to refer specifically to Indian tribes in the Amendment because it simply stood to reason that, for an Indian, mere presence in the United States could not be treated as a transfer of allegiance from his tribe to the United States. Query whether, in the 21st century, it stands to reason that a French tourist who gives premature birth to a child during a two-week visit to Disney World should, by virtue of her presence in Orlando, be regarded as having forsaken her allegiance to France.
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.â€
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.
Without asking immigrants themselves, we cannot know where their allegiances lie, but in the case of Mexican immigrants, who constitute nearly 60 percent of the illegal alien population in the United States, we do know what their government thinks. It appears these individuals owe at least partial, if not complete allegiance to the government of Mexico.
For example, in its recent amicus brief to the U.S. District Court overseeing the injunction hearing on Arizona’s anti-illegal immigration bill S.B. 1070, the government of Mexico refers to Mexican illegal aliens as “its people†and “its citizens.†This is not a new perspective.
No, birthright citizenship was already the norm, as it had been going back to England. And the 14th put it formally in the Constitution, not a statute.
From Subjectship to Citizenship. Political historians note that the founders the United States sought a citizenship policy different from that found in British common law. The phrase “birthright citizenship†is derived from “birthright subjectship,†a phrase that described the perpetual allegiance to the King of England owed in medieval times by anyone born within his realm. According to Professor Edward J. Erler, Professor of Political Science at California State University:
“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 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.â€
Like other historians, Erler notes that in the Declaration of Independence and the Constitution the Founders rejected the medieval concept of ascriptive “subjectship†in favor of a modern “citizenship†based on the consent of the governed.25 The liberty sought by the Founders required citizenship, rather than subjectship, as only the former allowed the individual to leave his nation at any time of his choosing — a freedom not possible under British common law. As Blackstone explained, the “natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former… and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince.â€26 It was this very type of subjugation that the Founders did not want to bring to the new government.
The movement from medieval ascription to modern consent was explained by Peter H. Schuck and Rogers M. Smith in their influential book Citizenship Without Consent:
“[B]irthright citizenship originated as a distinctively feudal status intimately linked to medieval notions of sovereignty, legal personality, and allegiance. At a conceptual level, then, it was fundamentally opposed to the consensual assumptions that guided the political handiwork of 1776 and 1787. In a polity whose chief organizing principle was and is the liberal, individualistic idea of consent, mere birth within a nation’s border seems to be an anomalous, inadequate measure or expression of an individual’s consent to its rule and a decidedly crude indicator of the nation’s consent to the individual’s admission to political membership.â€
Schuck and Smith argue that a constitutional commitment to “citizenship based on mutual consent†is not only in line with the historical development of the United States but that it is also “constitutionally permissible and democratically legitimate.â€29
Still, the exact perimeters of U.S. citizenship were never fully defined during the early years of the nation’s founding and consensualism was never fully embraced, in part because a complete resolution of the issue would have raised sensitive questions about whether state or national citizenship was primary, whether states had to recognize citizenship granted by other states, and the issue of state and federal authority, generally.30
At the most basic level, Americans were quite obviously committed to the principles of a consensual government and also the right of expatriation — particularly since the British continued to demand the allegiance of their former subjects well into the nineteenth century. The ascriptive approach to citizenship simply did not comport with the purpose behind the American Revolution.31
Nevertheless, it was not until the American Civil War that the concept of citizenship acquired some much-needed clarification.
Puerto Rico doesn't have any electoral votes because it is not a state,
The District of Columbia is not a state.
If you move to Puerto Rico you won't have a vote for President either.
I can if I still use a state as a domicile just like Americans overseas can vote.
Not true. It's resolved, and never really been in doubt. Birthers think it's not resolved because they don't like the answer. But birthers twist all kinds of things to make things come out the way they want.
Cite how it has been resolved. The Senate Resolution 511 that was put out on McCain includes the following:
Whereas the term ‘‘natural born Citizen’’, as that term appears in Article II, Section 1, is not defined in the Constitution of the United States;
