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
This was posted yesterday:
“If my wife and I fly to Paris and she has a baby there I and she in no way would believe that the child has any connection to France. To think otherwise about American Law requires fantastical thinking. Birthright citizenship phrasing is Orwellian. Lose the phrase. It’s ridiculous.”
“As an aside, after Pearl Harbor, the Japanese in California did not ‘take up the sword’ for Emperor Hirohito.”
No, but in Hawaii they did.
So if the question is are the parents subject to Jury Duty, for non US citizens the answer is no in red states. Which would imply not subject to jurisdiction.
“I just heard on Fox that Ireland ended this nonsensical practice by way of a national referendum.”
https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_of_the_Constitution_of_Ireland
An intelligent and honest SCOTUS will agree that the 14th Amendment does not say any aho that lands on U.S. soil is an American.
https://en.wikipedia.org/wiki/Niihau_incident
A damaged Zero from Pearl Harbor crash landed on Niihau Island. The locals did not know of the attack. Issei and Nisei on the island found out when they acted as translators. Instead of honestly translating, they assisted the Jap pilot and armed him and the Hawaiians were hostages.
Some Hawaiians rowed to Kauai for help. Eventually one big Samoan broke the Jap pilot’s back over a rock wall.
Roosevelt and the Army was aware of that incident when they conducted the internment. It was for enemies, not race. Chinese were treated fine here during the war.
In the amendment, the clause was changed to deal with the likely problem of American Indians who paid tax but often acted up at the time on their own tribal leaders’ request and not at the behest of a foreign power:
“The locals did not know of the attack. Issei and Nisei on the island found out when they acted as translators. Instead of honestly translating, they assisted the Jap pilot and armed him and the Hawaiians were hostages.”
Perhaps the translators feared the emperor’s pilot would finger them if the main force landed on the island within hours.
“Birthright citizenship phrasing is Orwellian. Lose the phrase. It’s ridiculous.”
THIS
Very probably so. It’s fascinating to read about. That almost uninhabited island was designated as a submarine rescue pickup point for any pilot who made it there.
And I might be wrong, but I think the big Hawaiian was decorated for his bravery and loyalty.
There is no shortage of attorneys who believe as Eastman does - Alan Dershowitz - Jonathan Turley - Greg Jarrett - for three of the best!
::Why is it so important to those states that children of illegals be citizens?::
Good question but unfortunately, there are always more questions here than answers - pure speculation most of the time without specifics!!!
“...there is already ample clear evidence that require no speculation what “subject to the jurisdiction” means.”
If that were true, then we wouldn’t be having all the discussion and disagreement today. Obviously the leftists are twisting the words to suit their needs and goals.
While we agree in large measure, I must object to your view that Vivek Ramaswamy is an NBC. To make sure we are on the same page, it is my understanding neither of Vivek’s parents were permanent residents nor naturalized citizens at the time of Vivek’s birth within the jurisdiction.
The way birthright citizenship is practiced at present...
-A baby born aboard an airliner merely passing over US territory might be considered a citizen.
-A baby born in a clinic built up against the Mexican side of the yet-to-be-completed border wall might be considered a citizen since the wall is, in most areas, a few feet inside US territory...
The insanity of our situation is clear.... these absurd possibilities and many others will be detailed before the supreme court.
This was meant for the protection of black slaves after the CW. Democrats held that these newly minted citizens would vote republican since Lincoln was a republican thus democrats were afraid of the amendment.
In the writings made at the time of passage of the fourteenth amendment can be found the true intent of the writers and those who voted for the amendment. They held that it was not meant for those illegally in the country and said such in plain language.
This will be shut down by the courts.
Again, it has long since been adjudicated that anyone born on U.S. soil whose parents are LEGALLY in the U.S. but not citizens (legal “aliens”) is an NBC. That would make Vivek an NBC.
Bkmk
I can see what’s coming. All chimpanzees born on American soil are going to be U.S. Citizens.
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