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
I'll save you the trouble, it has... erroneously in my opinion... in the Wong Kim Ark decision by the same court that later ruled on racial segregation in the Plessy v. Ferguson decision. Here's why:
I say that the Supreme Court was wrong in their ruling in UNITED STATES v. WONG KIM ARK., citing section 93 as the basis for my challenge.
93
The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States.
So far, so good. SCOTUS references "resident aliens" and "domiciled within the United States." At first, I assumed they were referring to Black's definition of "domiciled," but I was wrong. Very wrong.
SCOTUS continues...
Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Coke, 6a, 'strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject'; and his child, as said by Mr. Binney in his essay before quoted, 'If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.'
SCOTUS goes way off the reservation here, completely discarding the definition of "domicile" as described in the earlier portion of the text and in accordance with Black's Law definition. Now, "domicile" is construed to be "local and temporary," but yet "strong enough to make a natural subject." Also, "his child" is no longer subject to the law of "domicile of origin," but is now "as much a citizen as the natural-born child of a citizen."
This is where any legal challenge to Wong Kim Ark should be directed.
SCOTUS finishes section 93...
It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides, seeing that, as said by Mr. Webster, when secretary of state, in his report to the president on Thrasher's case in 1851, and since repeated by this court: 'Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance, or of renouncing any former allegiance,—it is well known that by the public law an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be, unless his case is varied by some treaty stipulations.'
This last part is a non sequitur to the issue of "domicile." Being temporarily subject to our laws for the brief time that one is habitually residing here should not be strong enough to overrule "domicile," "domicile of origin," or to be put on par with a "resident alien."
I'd post all the rest of my boilerplate with the Black's Law definitions of all the terms that I cited, but that should be easily found here in my posting history.
SCOTUS should overturn the conclusions in section 93 of the Wong Kim Ark decision and cast off the notion that an alien here casually has the same strength of allegiance as someone who became a permanent resident alien.
-PJ
dersh came out against
Thank you, PJ. As many of us have said from the very beginning, and that beginning started with Barack Obama’s illegal presidency, there is only one definition for an Art. II, §1, Cl. 5 natural-born Citizen, and that is being born solely within the jurisdiction of two citizen-parents.
I most strenuously disagree and so would the founders and framers of the Constitution who had to deal with a multitude of still loyal British subjects living in our newly formed country after independence. Add to that the all-important fact that the Constitution added the office of Commander-in-Chief of all the nation’s armed services to the office of the presidency, the founders and framers had even reason to hold forth the highest criteria for the presidency.
Likewise, my objection to Wong. It allows the offspring of mere permanent residents to be considered natural-born Citizens, weakening that original resolve to set the highest qualifying criteria for the presidency.
I have no objection to granting birthright citizenship to the children of permanent residents living in this country. However, I become concerned when these children are classified as natural-born citizens under Article II, Section 1, Clause 5 of the Constitution. I would argue that the Citizenship Clause of the 14th Amendment is fundamentally a naturalization clause and should be interpreted as such, at birth or afterward.
I'll save you the trouble, it has... erroneously in my opinion... in the Wong Kim Ark decision by the same court that later ruled on racial segregation in the Plessy v. Ferguson decision. Here's why:
I say that the Supreme Court was wrong in their ruling in UNITED STATES v. WONG KIM ARK., citing section 93 as the basis for my challenge.
93
The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States.
So far, so good. SCOTUS references "resident aliens" and "domiciled within the United States." At first, I assumed they were referring to Black's definition of "domiciled," but I was wrong. Very wrong.
SCOTUS continues...
Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Coke, 6a, 'strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject'; and his child, as said by Mr. Binney in his essay before quoted, 'If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.'
SCOTUS goes way off the reservation here, completely discarding the definition of "domicile" as described in the earlier portion of the text and in accordance with Black's Law definition. Now, "domicile" is construed to be "local and temporary," but yet "strong enough to make a natural subject." Also, "his child" is no longer subject to the law of "domicile of origin," but is now "as much a citizen as the natural-born child of a citizen."
This is where any legal challenge to Wong Kim Ark should be directed.
One would expect a natural hierarchy of rights: Citizen > Permanent Resident Alien Visa > Non-Immigrant Alien Visa > Illegal Alien (no visa).
And yet, SCOTUS in section 93 has put non-immigrants and illegal aliens on the same level as citizens!
SCOTUS finishes section 93...
It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides, seeing that, as said by Mr. Webster, when secretary of state, in his report to the president on Thrasher's case in 1851, and since repeated by this court: 'Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance, or of renouncing any former allegiance,—it is well known that by the public law an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be, unless his case is varied by some treaty stipulations.'
This last part is a non sequitur to the issue of "domicile." Being temporarily subject to our laws for the brief time that one is habitually residing here should not be strong enough to overrule "domicile," "domicile of origin," or to be put on par with a "resident alien" or "citizen.
SCOTUS should overturn the conclusions in section 93 of the Wong Kim Ark decision and cast off the notion that an alien here casually has the same strength of allegiance as someone who became a permanent resident alien or the child of citizen parents.
- "Domicile" compared and distinguished
- As "domicile" and "residence" are usually in the same place, they are frequently used as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city and country, but only one domicile.
Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home.
Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile.
-PJ
It was approved by referendum on 11 June 2004 and signed into law on 24 June of the same year.
If you look at the world map for “unconditional birthright citizenship” the adherents are mainly from the western hemisphere (north, central, south America). Other European countries usually have some kind of conditions on the births and rights.
All told, only about 30 countries are like the US.
I agree. That’s the operative clause needing specific clarification from the USSC.
I don’t think some cow from China here on a ‘birth tourism’ vacation qualifies to the “subject to the jurisdiction thereof” part because it is ONLY that part of their property, belongings or actions here in the US that are possibly subject....none of their home country interests are adjudicated, etc.
The Amendment was meant for the children of freed former slaves.
“The Amendment was meant for the children of freed former slaves.”
Yes, exactly. The Dems are twisting and distorting the original intent of the Amendment. They are using the same pathetic argument they used to try to keep President Trump off the ballot in 14 states last fall because he violated Section 3 of the U.S. Constitution’s 14th Amendment, which bars any individual from holding federal or state office who has “engaged in insurrection.”
Birthright Citizenship BUMP!
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