From Congressional debate for adopting the 14th Amendment.
Posted on 12/23/2025 5:13:14 AM PST by MtnClimber
Birthright citizenship — the idea that anyone born in the United States is automatically a citizen, with full right to receive all benefits and vote when they come of age — has been a fixture of the administration of the laws in this country for my entire lifetime. But does the text of the 14th Amendment to the Constitution make the birthright citizenship rule apply to all cases, even the most extreme? Under the 14th Amendment, properly interpreted, do children born of illegal aliens subject to a deportation order really qualify for birthright citizenship? How about children born of an illegal entrant who has snuck across the border for a few hours just to have the baby and then immediately go home? How about children born of a Chinese billionaire who has hired surrogates in the U.S. to produce dozens of babies? Under the version of “birthright citizenship” implemented by the federal government for the last hundred years or so, all of these examples, and plenty more, qualify.
Advocates for the position that all of these extreme cases should qualify for birthright citizenship generally think that their position is exceedingly simple and obvious, so much so that anyone arguing the contrary, or for any exceptions or limits, must be either dishonest or crazy. Indeed, those were the very words uttered by Harvard Law Professor Gerald Neuman to describe the position of the Trump administration, as quoted in my previous post (December 15) on this subject ([the argument that children of undocumented aliens or those on temporary visas are not citizens by birthright under the 14th Amendment] “is either a crazy theory or dishonest interpretation of the Constitution.”)
But the language of the 14th Amendment clearly does not grant automatic citizenship to all children born on U.S. soil, no matter the circumstances. That is so because there is a qualifying phrase to the otherwise absolute grant of birthright citizenship: “and subject to the jurisdiction thereof.” Those additional words must be given some meaning. (The full text of Section 1 of the 14th Amendment is “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 additional phrase must imply at least some exceptions to the rule of citizenship by birth. How do we figure out what those are?
Advocates for the broad version of birthright citizenship have a quick answer: there is one excluded category, and only one, namely children born to diplomats of foreign countries, while those diplomats are their spouses are in the U.S. Diplomats are entitled to what is called “diplomatic immunity,” which generally means that they cannot be held responsible for crimes committed while here, nor sued civilly in U.S. courts. Prosecuting people for crimes, or holding them responsible for civil wrongs, are forms of exercising jurisdiction over them; thus diplomats are not “subject to the jurisdiction” of the U.S. By contrast, the argument goes, essentially everybody else, including all the most extreme cases of birthright citizenship claimants, can be prosecuted in the U.S. for crimes committed here, or sued here for torts committed here.
So is the case of diplomats the only exception to the rule of birthright citizenship? How might we tell?
The answer is that we get insights by engaging in constitutional interpretation. Over in the legal academy, scholars make careers by devising theories of how to do this. The theory that is currently most in vogue, particularly among the conservative wing of the Supreme Court that is likely to have the deciding voice in this case, is called “original public meaning.” The famous exposition of that theory, should you want to read about it, is found in the majority opinion, written by Justice Scalia, in the 2005 case of District of Columbia v. Heller. That is the case that found that the Second Amendment to the Constitution conferred an individual right to keep and bear arms.
Two decades since Heller, the “original public meaning” theory has largely supplanted the prior dominant theory of interpretation, which was often called “intent of the draftsmen.” Under the “intent of the draftsmen” approach, the key to interpretation was finding useful quotes in the statements of the sponsors in support of their amendment, or in the debates in the Congress or state legislatures considering adoption. Under the “original public meaning” approach, those statements of sponsors and from floor debates have been reduced to near irrelevance. Instead, courts following the “original public meaning” approach are looking to statements in the public square discussing or applying the language at issue, at or around the time of enactment. Of particularly relevance are legal authorities, decided in the context or framework of the disputed language, again during that time frame near enactment.
This is where the situation of Indian citizenship in the late 19th and early 20th centuries becomes critical to interpreting the 14th Amendment. I raised that subject in the December 15 post, and will discuss it further here.
There is a Supreme Court case from 1884, Elk v. Wilkins, that is highly informative. Elk, a member of an active Indian tribe, had left the tribe to go to live among the “white citizens” of Nebraska. He had been born within the territory of the United States. In 1880, he sought to register to vote as a citizen, based on the language of the 14th Amendment, but his application was denied, and he sued to compel the registrar to enroll him. The Supreme Court ruled against Elk. Here is the significant language:
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. They were never deemed citizens of the United States except under explicit provisions of treaty or statute to that effect. . . . This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is 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. . . . Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.
And thus, despite the 14th Amendment, Indians born in the U.S. remained non-citizens, and generally unable to vote unless naturalized, until the Indian Citizenship Act of 1924.
But the situation of Indians in the 19th century U.S. was different from that of diplomats. Indians did not have diplomatic immunity. Although the situation was complex, and subject to gaps and exceptions, in general an Indian who committed a crime outside of an Indian reservation was subject to criminal prosecution in the regular (non-tribal) state or federal courts. In other words, the alleged distinction based on diplomatic immunity, to explain why diplomats do not get birthright citizenship for their babies but everybody else does, does not stand up to the case of Indians. Indeed, it’s even a little worse, because shortly after Elk, in 1885, Congress passed something called the Major Crimes Act, which authorized prosecution in non-tribal courts of Indians for certain major crimes (like murder) even if committed on a reservation. If this was equivalent to making Indians “subject to the jurisdiction” of the U.S., then this Act would have meant the arrival of birthright citizenship for the Indians. But that is not the way they acted in the 19th century. Despite the Major Crimes Act, the Indians were not accorded general citizenship until 1924.
Note that the proponents of the extreme version of birthright citizenship mainly rely on another late 19th century Supreme Court case, Wong Kim Ark (1898), which was discussed in my December 15 post. The Court in Wong Kim Ark distinguished it from Elk, but did not overrule Elk. Indeed, the two opinions were written by the same justice, Horace Gray, who clearly did not consider them to be inconsistent.
So consider how the combined cases of Elk and Wong Kim Ark apply to the situation of a tourist today. Most tourists are legal tourists with short-term visas. They carry a passport from a foreign government, which is essentially a request by that government to the U.S. to allow its citizen safe passage here. Can it really be said that they are “completely subject to [U.S.] political jurisdiction and owing [the U.S.] direct and immediate allegiance”? Or is their situation closer to that of the Indian who, in the words of Justice Gray, was not “completely” subject to the jurisdiction of the U.S., and did not owe it to “direct and immediate allegiance.”
And if the situation of the legal tourist is close to that of the Indian as characterized by Justice Gray, then how about the situation of the illegal alien? The illegal alien has made no gesture of “direct and immediate allegiance” to the U.S., and indeed has flouted our laws.
Note that I am not saying that this situation is without ambiguities, and that there are no reasonable arguments on the other side. However, I reiterate that I think the question of unrestricted birthright citizenship for all but children of diplomats is an open question. The question of how the 14th Amendment applies to illegal aliens has definitely not been decided by the Supreme Court, and there are reasonable arguments on both sides.
To those who say in this dispute that a President cannot change the Constitution, I say that the current institutional application of birthright citizenship is itself a creation of the executive departments (under multiple presidents) that has never been blessed by the courts. A new President can implement a new policy if the new policy is not precluded by prior court precedent.
From Congressional debate for adopting the 14th Amendment.
There IS no “guarantee of birthright citizenship” in our US Constitution, US Code, Statutory or Case law. There is only bureaucratic history, administrative compliance to issue birth certificates to everyone to rely on for this error in judgment.
The 14th Amendment makes it CLEAR that, ONLY children of US Citizens, or those otherwise under the jurisdiction of our Constitution (those living in territories, on reservations, etc) NOT of a foreign country are born as US citizens.
This is SO simple it’s why the founders and congress left it alone; it wasn’t codified until the 1860’s AFTER the war between the states was settled.
“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.” - 14th Amendment
Children born of parents who are NOT “subjects” (as in “subjects of the crown” - CITIZENS) can NOT BE citizens themselves by “birthright.”.
That pesky little coordinating conjunction “and” certainly does confuse people, especially the semiliterate and agenda-driven lawyers and jurists today and for several decades past who haven’t understood a WORD of our US Constitution much less really read it in the context of its writing.
For reference: Coordinating Conjunctions
“And” is a coordinating conjunction used to join words, phrases, or clauses that are of equal importance and grammatical structure. It is one of the seven coordinating conjunctions in English, which can be remembered using the acronym FANBOYS (For, And, Nor, But, Or, Yet, So).
In the words of Supreme Court Justice Antonin Scalia (RIP) “The constitution says what it says and doesn’t say what it doesn’t say.”
What also needs clarification is the ‘jurisdictional’ status of minors and parents.
It has always been accepted that minors are under the jurisdiction of their parents unless legally ruled upon (orphans, fosters and adopted are all of legal status).
A minor is never an sovereign citizens until s/he comes of age (currently, 18).
They are under their parents jurisdiction who are held responsible for them.
At no time has this status been ruled upon nor even brought before the SCOTUS that I know of.
There have been case-by-case alterations (murder tried as an adult).
In a hyperbolic sense, if a child, born on US soil, is conferred full and sovereign US citizenship, then that child can enter into full and binding contracts (mortgages) at birth or any time following.
If this is first clarified then any minor born on US soil to foreign parents is subject to their (parents) jurisdiction.
Who, in turn, are subject to their country of origin.
This is going to be interesting, see how they define “subject to jurisdiction “…
A person who is not a citizen but commits a crime in this country is still subject to our laws, like in any country, save diplomats with immunity.
You don’t have to be a citizen to be under the jurisdiction of the law of the land.
Likewise I doubt the writers of the amendment meant for visa babies, illegals having children, and foreigners paying for children to be born with American citizenship mothers to get automatic citizenship
Will see if the SC can grow a spine and do the right thing, not holding my breath
I would postulate that if this is not adjudicated such that the current understanding of “birth-right” citizenship is not eliminated, the Federal Government would have no choice but to lay-claim to her own sovereign citizens while the parent(s) would be required to leave the US according to their passport/visa status.
Does NOT exclude children of illegals born here from birthright citizenship. It’s very clear.
Yes, and they can be deported as part of that crime because they're still subject to the country they came from.
It absolutely does exclude children born here of illegal aliens. If their parents are subject to the jurisdictions of their home countries, so are the children.
Elian Gonzalez was returned to Cuba as an infant because he was subject to the jurisdiction of Cuba, not the United States.
OK. I’ll tell my story again.
I had two grandfathers who were registered for the draft in 1917. They got a card which designated their citizenship as one of three possibilities: Natural Born, Naturalized, or Alien.
Grandfather 1 was born in Brooklyn NY in 1893 to parents who were subjects of the Emperor of Germany.
Grandfather 2 was born in Connecticut in 1895 to a father who was a subject of Her Britannic Majesty Victoria Alexandrina, Queen of the United Kingdom of Great Britain and Ireland; and to a mother who was a subject of the Emperor of Germany.
Neither of my grandfathers applied for naturalization. When grandfather 2 went “home” to Ireland at age 13, with his mother and no passport, on return to NY a port officer questioned his nationality and he was determined by officials there to be a US citizen.
The War Department in 1917 assigned both of them “Natural born” citizenship status.
Does anyone here think that was incorrect? If it was incorrect, why was it incorrect?
That’s not what it says...Both the child and the “illegal” parents are subject to the jurisdiction of where they are...If the parents commit a crime...they are arrested and tried.
If the United States can arrest the alien parents, place them in US court proceedings, take their stuff, and put them on plane to South Sudan, then a textualist would certainly say those alien parents are being subjected to US jurisdiction.
Your citizenship doesn't change at every airport you land at.
He was returned to Cuba because his father wanted him back. The mother and her boyfriend had stolen the child. Both the mother and her boyfriend drowned. Elian was never an American but he was subject to our laws while he was here. And he was five...not an infant.
You made my point that he was never a citizen despite being subject to our laws while he was here.
The United States didn't deport a United States citizen to Cuba. The United States deported a Cuban citizen to Cuba, because Cuba exercised their jurisdiction at his father's request.
They're being returned to South Sudan which has jurisdiction over them.
The supposed controversy over “subject to the jurisdiction thereof” is a pretension by people who want to change the demographics of the country. Obviously, any person that enters any country is subject to that country’s laws, (obviously one doesn’t have a free pass to rob banks) so the writers of the 14th amendment did not have in mind mere law and order obligations.
They’re being returned because OUR LAWS...say they are here illegally.
If the United States can arrest the alien parents, place them in US court proceedings, take their stuff, and put them on plane to South Sudan, then a textualist would certainly say those alien parents are being subjected to US jurisdiction.
On the contrary, if they can be deported…. “Under the jurisdiction” means here legally, not subject to prosecution.
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