Posted on 01/23/2025 1:21:56 PM PST by MtnClimber
The 14th Amendment does not confer automatic citizenship.
Claremont Institute scholars, including me, Ed Erler, Tom West, John Marini, and Michael Anton, President Trump’s incoming Director of Policy Planning at the State Department, have been contending for years—decades, really—that the 14th Amendment’s Citizenship Clause does not provide automatic citizenship for everyone born on U.S. soil, no matter the circumstances. Other prominent scholars, such as the late University of Texas law Professor Lino Graglia, University of Pennsylvania Professor Rogers Smith, and Yale Law Professor Emeritus Peter Schuck, have come to the same conclusion based on their own extensive scholarly research.
Claremont scholars have made the argument in books, law review articles, congressional testimony, and legal briefs. President Ronald Reagan’s Attorney General, Edwin Meese, even joined one of those briefs, in which we argued against treating enemy combatant Yaser Esam Hamdi as a citizen merely because he had been born in Baton Rouge, Louisiana, while his father was working in the U.S. on a temporary work visa. Perhaps as a result of our brief in that case, the late Justice Antonin Scalia referred to Hamdi as a “presumed citizen” in his dissenting opinion.
Our argument is straightforward. The text of the 14th Amendment contains two requirements for acquiring automatic citizenship by birth: one must be born in the United States and be subject to its jurisdiction. The proper understanding of the Citizenship Clause therefore turns on what the drafters of the amendment, and those who ratified it, meant by “subject to the jurisdiction thereof.” Was it merely a partial, temporary jurisdiction, such as applies to anyone (except for diplomats) who are subject to our laws while they are within our borders? Or does it instead apply only to those who are subject to a more complete jurisdiction, one which manifests itself as owing allegiance to the United States and not to any foreign power?
Think of it this way. Someone from Great Britain visiting the United States is subject to our laws while here, which is to say subject to our partial or territorial jurisdiction. He must drive on the right-hand side of the road rather than the left, for example. But he does not thereby owe allegiance to the United States; he is not subject to being drafted into our army; and he cannot be prosecuted for treason (as opposed to ordinary violations of law) if he takes up arms against the United States, for he has breached no oath of allegiance.
So which understanding of “subject to the jurisdiction” did the drafters of the 14th Amendment have in mind?
Happily, we don’t need to speculate, as they were asked that very question. They unambiguously stated that it meant “complete” jurisdiction, such as existed under the law at the time, the Civil Rights Act of 1866, which excluded from citizenship those born on U.S. soil who were “subject to a foreign power.”
The Supreme Court confirmed that understanding (albeit in dicta) in the first case addressing the 14th Amendment, noting in The Slaughterhouse Cases in 1872 that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” It then confirmed that understanding in the 1884 case of Elk v. Wilkins, holding that the “subject to the jurisdiction” phrase required that one be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” John Elk, the Native American claimant in the case, did not meet that requirement because, as a member of an Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States.
Thomas Cooley, the leading treatise writer of the era, also confirmed that “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.” More fundamentally, this understanding of the Citizenship Clause is the only one compatible with the consent of the governed principle articulated in the Declaration of Independence.
All of this matters a great deal because on the first day of his second term in office, President Trump issued an executive order, “Protecting the Meaning and Value of American Citizenship,” which adopted the view of the Citizenship Clause I and other Claremont scholars have espoused. It directs every department and agency of the U.S. government to accept our view henceforth as the correct interpretation of the Constitution’s Citizenship Clause.
This may be the most legally controversial executive order issued by the president on day one. And because of that, it is already being challenged in court, as 22 states have filed a lawsuit trying to block its implementation a little more than 24 hours after it was signed.
In the coming days and weeks, just as with that lawsuit, there will be lots of pundits opining that the president had no authority to issue such an order because the Constitution mandates automatic citizenship for everyone born on U.S. soil, a mandate that cannot be changed with the stroke of a president’s pen. They will contend that the Supreme Court already settled the issue more than a century ago in the 1898 case of United States v. Wong Kim Ark.
But even if Wong Kim Ark was correctly decided (as Ed Erler points out, it was not), honest scholars must acknowledge that Wong Kim Ark involved a child born to parents who were permanently domiciled in the United States, not those who were only here temporarily or illegally. Indeed, honest scholars will be forced to acknowledge that the Supreme Court has never held that the children of illegal immigrants, or even temporary lawful visitors, are constitutionally entitled to automatic citizenship merely by virtue of their birth in the United States. And they will be forced to acknowledge as true the claim in Trump’s executive order that “the Fourteenth Amendment has never been interpreted [in any formal, binding way] to extend citizenship universally to everyone born in the United States.”....SNIP
How many other countries do this?
None!
The only way to clear this mess up once and for all is to pass a very clear, unambiguous 28th Amendment to the Constitution.
Otherwise 'subject to the jurisdiction thereof' will be debated and whipsawed by administration after administration, judge after judge, SCOTUS after SCOTUS for purely partisan political reasons.
No other countries do it that I have heard of. And the 14th Amendment is clear as day.
“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.”
When did they start enforcing the “anchor baby” make it across the goal line concept? It sure wasn’t back then.
The plaintiffs have no standing for these lawsuits. At all.
An important paragraph from Eastman:
“Nevertheless, despite the original meaning of the Constitution’s text, its initial interpretation by the Supreme Court, and its compatibility with the social compact “consent of the governed” political theory of the Declaration, our government agencies have for more than a half-century, without any formal amendment, court decision, or official authoritative pronouncement, been acting as though birth alone is sufficient to confer citizenship”
Trump’s EO does nothing more then what the “government agencies” (State mainly) have been doing: clarifying the 14th based on their own interpretation.
We’ve covered this before on this board. The EO in question simply lays out rules for those agencies based on prior court rulings with clearer specifics that are relevant to updates in Congressional law since 1924: the McCarran-Walter Act, for example. That act specifically made student and tourist visa holders clearly non-immigrant. Thus, there is no allegiance imputed; and thus, clearly “not subject to the jurisdiction thereof”.
When a fossilized old Bolshevik from Seattle bloviates that it’s “Unconstitutional!” you have to ask...did he say that when the State department just made it all up on their own?
In Perkins v. Elg, 99 F. 2d 408, Court of Appeals, Dist. of Columbia Circuit 1938, the Court of Appeals noted as part of the basis for their decision that...
In United States v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456, 42 L. Ed. 890, 1898 [the Court found that] [W]hen the Constitution was adopted, the people of the United States were the citizens of the several States for whom and for whose posterity the government was established. Each of them was a citizen of the United States at the adoption of the Constitution, and all free persons thereafter born within one of the several States became by birth citizens of the State and of the United States.
It appears the Court of Appeals in Elg (1939) agrees with Ark (1898) decison.
(Both Marie Elizabeth Elg and Wong Kim Ark were born on U.S. soil to parents who were here legally but not U.S. citizens. )
Again, the Constitution is properly applied as written and ORIGINALLY UNDERSTOOD and intended. What matters is what the ratifiers of the Constitution considered an NBC was. The Supreme Court decisions based on the good-faith and sound finding of original understanding of NBC in the Constitution is, therefore, legal precedent concerning NBC. Thus, Vivek should be considered an NBC.
Some argue that the term "NBC" is not specifically used in Ark or Elg, but these cases revolve around citizenship based on birth on U.S. soil, which is exactly what NBC is. An NBC is a citizen automatically because he was born on U.S. soil. He is “naturally” and automatically a citizen needing no further processing to become a U.S. citizen. He becomes a citizen under “natural” (birth) circumstances, exactly as Elg, Ark
Just one question. If an alien drops an anchor baby, and that baby is a US citizen by birth by golly, why do the aliens get to take the baby when they leave?
Why? Why is it so important to those states that children of illegals be citizens?
No it isn't, and we have evidence that it isn't.
That evidence is the word "Citizen."
Jus Soli was the English law method for determining someone was a natural born subject.
Our meaning of the word "citizen" comes directly from Switzerland. We tossed out the English "subject", and Jus Soli right along with it.
There is an 1817 Pennsylvania law book that specifically says American citizenship is based on Vattel, not English common law. I'll show you the page that says that if you wish.
Marie Elg’s father naturalized the year before her birth. He most certainly was “subject to the jurisdiction” when she was born, thus no controversy on that point.
The question in that case was whether he expatriated her as well as himself when he renounced his citizenship in Sweden years later. The court sensibly said no.
It was a different question.
A Reagan judge enjoined Trump’s citizenship EO. He is a federalist judge, not a conservative. There is a difference.
It is very simple really - if neither parent is a USA citizen, the spawn is not a USA citizen.
Good question. I just heard on Fox that Ireland ended this nonsensical practice by way of a national referendum. Earlier today I heard a discussion concluding that President Trump would have a tough time finding political backing for his position, and I thought, "Huh?"
It seems to me that a vast majority of Americans would agree with President Trump. I personally never knew of such a law until I was quite old and the term "anchor baby" was explained to me. I could hardly believe such a thing.
Illegal aliens are not subject too
In fact they blatantly ignore American laws
Being subject to means a person respects and adheres to American laws
Illegal aliens are not subject too
In fact they blatantly ignore American laws
Being subject to means a person respects and adheres to American laws
While I have no problem with an Amendment to define it.
The job of the SCOTUS is the interpret the text as written, and there is already ample clear evidence that require no speculation what “subject to the jurisdiction” means.
First really clear explanation I have seen on this topic.
The Civil Rights Act, passed at the first session of the Thirty-ninth Congress, began by enacting that “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed....
It was feared that a mere law might be done away with by a future Congress, so a constitution amendment was proposed to ensure the Civil Rights Act would be the law indefinitely.
In the amendment, the clause was changed to deal with the problem of American Indians who paid tax but often acted up at the time on their own tribal leaders and not at the behest of a foreign power:
“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 Congress went from:
and not subject to any foreign power, excluding Indians not taxed
to:
subject to the jurisdiction thereof
The people who changed the text said on the record that the jurisdiction has to be “complete” - i.e. encompassing all the scope of original phrase (and even including Indians who generally paid the taxes levied).
It should be borne in mind that:
1. no African ruler could at the time prove he had a right to allegiance from any particular freedman
2. no European ruler could at the time prove he had a right to allegiance from any particular Gypsy
3. the Chinese and Japanese came to California and left their homeland behind
4. it took a lot of effort to get to California.
Yes, Wong’s family returned to China, but probably because of growing racism. Wong Ark Kim wanted to return to the US so much he paid a lot to do so and fought a case to the Supreme Court level.
As an aside, after Pearl Harbor, the Japanese in California did not ‘take up the sword’ for Emperor Hirohito.
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