Citizenship (birthright) - The Heritage Guide to the Constitution

https://www.heritage.org ^ | Edward Erler

[AlmaKing]

I found this commentary on citizenship interesting, specifically the third paragraph topic of 'subject to the jurisdiction thereof'.

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“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.”

Amendment XIV, Section 1

Teacher's Companion Lesson (PDF)

Before the adoption of the Fourteenth Amendment, citizens of the states were automatically considered citizens of the United States. In 1857, the Dred Scott v. Sanford decision had held that no black of African descent (even a freed black) could be a citizen of the United States. The Fourteenth Amendment was thus necessary to overturn Dred Scott and to settle the question of the citizenship of the newly freed slaves. The Fourteenth Amendment made United States citizenship primary and state citizenship derivative. The primacy of federal citizenship made it impossible for states to prevent former slaves from becoming United States citizens by withholding state citizenship. States could no longer prevent any black from United States citizenship or from state citizenship either.

The Civil Rights Act of 1866 had previously asserted that "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." The immediate impetus for the Fourteenth Amendment was to constitutionalize and validate the Civil Rights Act because some had questioned whether the Thirteenth Amendment was a sufficient basis for its constitutionality. A constitutional amendment would also have the advantage of preventing a later unfriendly Congress from repealing it.

One conspicuous departure from the language of the Civil Rights Act was the elimination of the phrase "Indians not taxed." Senator Jacob Howard of Ohio, the author of the Citizenship Clause, defended the new language against the charge that it would make Indians citizens of the United States. Howard assured skeptics that "Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States." Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that "subject to the jurisdiction thereof" meant "not owing allegiance to anybody else...subject to the complete jurisdiction of the United States." Indians, he concluded, were not "subject to the jurisdiction" of the United States because they owed allegiance—even if only partial allegiance—to their tribes. Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.

By itself, birth within the territorial limits of the United States, as the case of the Indians indicated, did not make one automatically "subject to the jurisdiction" of the United States. And "jurisdiction" did not mean simply subject to the laws of the United States or subject to the jurisdiction of its courts. Rather, "jurisdiction" meant exclusive "allegiance" to the United States. Not all who were subject to the laws owed allegiance to the United States. As Senator Howard remarked, the requirement of "jurisdiction," understood in the sense of "allegiance," "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."

Most revealing, however, was Senator Howard's contention 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." Almost everyone certainly would have understood "natural law" to refer to the social compact basis of citizenship, the basis for citizenship adumbrated in the Declaration of Independence.

The argument of the Declaration grounded citizenship in consent. The natural law argument of the Declaration was a repudiation of the notion of birthright citizenship that had been the basis of British citizenship (i.e., being a British "subject") ever since it was first articulated in Calvin's Case in 1608. Sir William Blackstone, in his Commentaries on the Laws of England, had argued that the idea of birthright citizenship was an inheritance from the "foedal system"—it derives from the "mutual trust or confidence subsisting between the lord and vassal." "Natural allegiance," says Blackstone, is "due from all men born within the king's dominion immediately upon their birth. [It] is a debt of gratitude which cannot be forfeited, cancelled, or altered, by any change of time, place or circumstance....[T]he 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."

In the Summary View of the Rights of British America (1774), Thomas Jefferson argued that it was a natural right possessed by all men to leave the country where "chance and not choice" had placed them. The notion of a natural right to expatriation has no place in the scheme of an indefeasible birthright citizenship. Furthermore, the natural right to revolution is the perfect antithesis of "perpetual allegiance." In 1868, the Reconstruction Congress passed an Expatriation Act. The act provided, in pertinent part, that "the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness." Senator Howard was an enthusiastic supporter of the bill, describing the right of expatriation as the necessary counterpart of citizenship based on consent. During debate, commentators frequently described Blackstone's view of birthright citizenship as an "indefensible feudal doctrine of indefeasible allegiance" that was incompatible with republican government.

In Elk v. Wilkins (1884), the Supreme Court decided that a native Indian who had renounced allegiance to his tribe did not become "subject to the jurisdiction" of the United States by virtue of the renunciation. "The alien and dependent condition of the members of the Indian Tribes could not be put off at their own will, without the action or assent of the United States" signified either by treaty or legislation. Neither the "Indian Tribes" nor "individual members of those Tribes," no more than "other foreigners" can "become citizens of their own will."

Beginning in 1870 Congress began extending offers of citizenship to various Indian tribes. Any member of a specified tribe could become an American citizen if he so desired. Congress thus demonstrated that, using its Section 5 powers to enforce the provisions of the Fourteenth Amendment, it could define who was properly within the jurisdiction of the United States.

In 1898, the Supreme Court in United States v. Wong Kim Ark declared that the Fourteenth Amendment adopted the common-law definition of birthright citizenship. Chief Justice Melville W. Fuller's dissenting opinion, however, argued that birthright citizenship had been repealed by the principles of the American Revolution and rejected by the framers of the Fourteenth Amendment. Nonetheless, the decision conferred birthright citizenship on a child of legal residents of the United States. Although the language of the majority opinion in Wong Kim Ark is certainly broad enough to include the children born in the United States of illegal as well as legal immigrants, there is no case in which the Supreme Court has explicitly held that this is the unambiguous command of the Fourteenth Amendment.

Based on the intent of the framers of the Fourteenth Amendment, some believe that Congress could exercise its Section 5 powers to prevent the children of illegal aliens from automatically becoming citizens of the United States. An effort in 1997 failed in the face of intense political opposition from immigrant rights groups. Apparently, the question remains open to the determination of the political and legal processes.

Edward Erler Professor Emeritus Senior Fellow, The Claremont Institute California State University, San Bernardino

[AlmaKing]

The part I keyed on:

Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that "subject to the jurisdiction thereof" meant "not owing allegiance to anybody else...subject to the complete jurisdiction of the United States." Indians, he concluded, were not "subject to the jurisdiction" of the United States because they owed allegiance—even if only partial allegiance—to their tribes. Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.

[LambSlave]

This is why Trump believes he can do this with an Exec Order. Both precedent (what little there is) and original intent are on his side and an honest Supreme Court would rule in his favor.

[Mr Rogers]

"Nonetheless, the decision conferred birthright citizenship on a child of legal residents of the United States."

LEGAL residents. Wong Kim Ark specifically noted that the alien parents HAD to be present "in amity" with the US government:

"...but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King."

Wng Kim Ark strongly suggests the children of ILLEGAL aliens are NOT citizens at all, being disqualified as both NBC and as not falling under the 14th, since the 14th "...to exclude, by the fewest and fittest words..." those already excluded under NBC.

Note that prior to 1882, there was no such thing as illegal immigration to the USA. Prior to that, anyone could enter at any time legally.

[AlmaKing]

The author seems to argue that federal legislation would be required to clarify the question with finality. It could be that one more direct opinion from the Supreme Court is all that is needed, which could come from an executive order and the resultant challenge. Oral arguments by the Solicitor General could refer simply back to that same Ark case.

Or Congress might hop in and attempt to clarify. But that seems doubtful due to such close margins in House and Senate. And they’re wimps anyway.

[glenduh]

Children born in the United States to accredited foreign diplomatic officers do not acquire citizenship under the 14th Amendment since they are not “born . . . subject to the jurisdiction of the United States.” As a matter of international law.

But illegal alien children do acquire citizenship because they are not subject to any law. Got it .

[Revel]

Very interesting if still not a bit confusing. I wish the people who wrote these amendments had done a better job of being perfectly clear. It is almost like they wanted to create a legal mess.

[PraiseTheLord]

Didn’t I hear somewhere that they did indeed explain this , in later writings ?

[lizma2]

The past few days,I’ve gone over the 14th, the changes and how we got to the 14th.

But in the 60’s this changed. What I haven’t found the answer to is “how”?

I suspect the “why” is the democrats discovered the ability to control the dependent. LBJ made this clear.

[oldbill]

By Section 5 of the 14th Amendment Congress has always had the opportunity to define what the “subject . . .” Clause means.

The incompetent and lazy Paul Ryan could have done that. But he is under the control of the Chamber of Commerce donor class and did nothing.

So he can shut his mouth now.

[Kickaha]

Thank you. This is the most helpful explanation I’ve found yet.

[Political Junkie Too]

Suppose that a vacationing couple, say from France, seeks refuge in the French embassy after accidentally killing someone in their rented car. While inside the French embassy, they are no longer subject to the jurisdiction of the United States. No natural born American citizen can do this.

If a person can seek refuge here in the USA in another country's embassy or consulate where they are not subject to our jurisdiction, then they are not fully and completely subject to the jurisdiction of the United States.

Now suppose this French couple had a baby inside the United States. Is this baby entitled to the protection of the French embassy, just like its parents?

Is there any place inside the United States where you or I can avoid the jurisdiction of the United States? Why should other "citizens" (like this French baby) be afforded this right? Why should "birthright" citizens have more protections against United States jurisdiction than natural born citizens?

-PJ

[castlebrew]

8: "What I haven’t found the answer to is “how”?"

By someone who perverted the original meaning of "jurisdiction" from "owing, or having sworn, allegiance solely to the United of States" to "subject to the laws..."

An interesting chain of cases in 1873 and 1884, to an 1898 case (Wong Kim Ark) which by judicial fiat overturned the 1884 case (as I read the various commentaries). This fiat reasoning was not supported in the ratification debates. So much for stare decisis.

[castlebrew]

8:

I found a good (and fairly in-depth) analysis from the Center for Immigration Studies.

[The Bat Lady]

But in the 60’s this changed. What I haven’t found the answer to is “how”? I suspect the “why” is the democrats discovered the ability to control the dependent. LBJ made this clear.

Ted Kennedy is how. what a disaster that man was for America.

[Yosemitest]

WAKE UP and READ THE CONSTITUTION !

Rush make the details of this discussion VERY CLEAR today.

EXCERPT ...

RUSH: ... But it is a seminal moment
when a political party, as its official position, refuses to accept election results.
That’s where we are, and that’s why we’re where we are.
They refuse to accept it, for whatever reason.
They hate Trump, they don’t feel good about it, they disagree, whatever.
Doesn’t matter why.
Just the fact that they refuse to accept the results is a horribly dangerous thing.
Because what if it keeps up ?
What if the only time there is peace in America is when they win elections ?

You know, I predicted some time ago that they’re gonna figure this out at some point,
and the natural conclusion to figuring this out is,
“Well, let’s just eliminate elections !
If elections are what’s holding us back, let’s find a way to eliminate ’em !”
People laughed.
“Come on, Rush. That’s never gonna happen.”
Do not ever say the left isn’t capable of anything ever.
So now Trump,
rather than being intimidated by their refusal to accept his election,
rather than get his feelings hurt,
Trump doubles down, triples down.

Every time they hit him, he hits back with additional energy and verve —
and I’m telling you, this promise with an executive order to end birthright citizenship is huge,
and it’s why he was elected.
When things are going terribly wrong — and they are in our country right now.
When things are terribly wrong and out of control, you have to have somebody willing to go outside the so-called boundaries,
and Trump’s doing it every day and willing to do so.
Because this is what pushing back —
this is what defiance, this is what changing what the left is doing
— looks like.

It was never gonna be pretty.
It was never gonna be quiet.
It was never gonna be clean.
It requires a strong stomach and strong fortitude.
I don’t think any elected Republican other than Trump…
Even if they had made the promises Trump made,
I think all of them would have caved by now.
But Trump hasn’t.
He doubles down.
“Right. I’m gonna issue an executive order;
I’m gonna end birthright citizenship.”
Let me read to you the 14th Amendment and how it begins.
“All persons…”



Now, the 14th Amendment goes back to 1866.
I think it was ratified by Congress in 1866.
It was passed by Congress; ratified by the states two years later.
So in 1866, it was passed by Congress and ratified by the states in 1868,
and its original intent was to grant citizenship to slaves and their descendants.
It was part and parcel of the post-Civil War era of America fixing itself.
It was a good thing.
Our Constitution was written so that mistakes at the founding could be corrected.
The vast majority of people knew slavery at the founding was untenable,
but they needed the union in order to fight the Revolutionary War.
They needed the southern states.
They needed unity to do that

so they had to accept slavery,
but they built in safeguards to wipe it out,
and it happened in 1868 when the 14th Amendment passed.

It begins this way:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the U.S. and of the state wherein they reside.”
It was clearly intended to be referring to slaves and their descendants.
The parts that birthright citizenship, uh, freaks have to delete are
“naturalized”
and “subject to the jurisdiction thereof.”
You are not naturalized and you are not subject to the U.S. jurisdiction if you’re here illegally !
You cannot be !

You’re under some other country’s jurisdiction.
If you’re here illegally, you cannot possibly be naturalized.
Well, the birthright citizenship crowd —
which wants to water down American culture and destroy Western civilization
— conveniently leaves out “naturalized” and “subject to the jurisdiction thereof.”
So your born-here child absolutely is not a citizen.
This is what Trump is saying.
Trump is finally pushing back against an assumption that has been made because
it was the path of least resistance, if you will.
But now it’s make-or-break time.

As my friend McCarthy says,
“You need somebody to break the furniture.”


Sometimes, you gotta remodel the house.

BREAK TRANSCRIPT

RUSH: Okay, a little bit more background on the 14th Amendment here
’cause it’s gonna be relevant as the issue going forward.
Again, it was added after the Civil War.
Its purpose was to overrule the Dred Scott Decision !
Which was a horrible decision.
Dred Scott sanctioned slavery.
Roger Taney was the chief justice, forever the immortalized in infamy.
It held that black slaves were not citizens.
So Congress got into gear and passed the 14th Amendment.

It guaranteed that freed slaves would have all the privileges of citizenship by providing, quote,
“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,”
which means
the drafters of the 14th Amendment had no intention of conferring citizenship on the children of aliens who happened to be born here.
In fact, the very author of the citizenship cause, Sen. Jacob Howard of Michigan, expressly said…



This is why the original intent of founding documents is so important.
Quote, “This,” meaning the 14th Amendment…

“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…”
It was expressly intended to confer citizenship to slaves and their descendants.
There was an 1884 case, Elk v. Wilkins.
The Supreme Court ruled the 14th Amendment did not even confer citizenship on Native Americans
because they were subject to tribal jurisdiction, not U.S. jurisdiction.

Well, an illegal alien here is not subject to U.S. jurisdiction.
They’re under the jurisdiction of where they came from if they’re here illegally.
Guess when this all changed ?
In the 1960s !
Concomitant with Senator Kennedy wanting to reopen…
We had shut down all immigration from ’21 to ’65.
Along comes Senator Kennedy in the pre-Chappaquiddick days wanting to reopen it
for the express purpose of
making sure the Democrat Party always had a permanent underclass of voters dependent on them and the government.

BREAK TRANSCRIPT

RUSH: And, by the way, and even according to our leftist brothers and sisters at NPR report
no nation in Europe confers birthright citizenship.
Liberals love to say we should emulate Europe, right ?
Okay !

BREAK TRANSCRIPT ...

Here's a plan:

~ Reverse the Magnet ~

This is what it takes:

   1. Secure the border in a transparently verifiable way;

   2. End the anchor-baby interpretation of the 14th Amendment;

   3. Enforce E-Verify without exception and with severe penalties;

   4. End chain migration. Entry per individual qualifications, not family ties;

   5. Deportation upon contact with any law enforcement agency - federal, state, or local;

   6. No government benefits beyond critical emergency care (and that ought to be billed back to the home government);

   7. No "Path to Citizenship" - EVER - for anyone who has entered the US illegally.

Any measure which does not accomplish these things is unacceptable.
It is de facto amnesty.
And it will inevitably, ineluctably encourage millions and millions more illegal entries.

Sounds like a great "Plan of Action" to me.