Birthright Citizenship: Interpreting The Phrase "Subject To The Jurisdiction Thereof"

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.

Act of May 24, 1934; 48 Stat. 797, "To amend; the law relative to citizenship and naturalization, and for other purposes, starts out amending Section 1993 of the citizenship law.

"Sec. 1993. Any child hereafter born out of the limits and jurisdiction of the United States...."

And Congress showed off its intelligence and logic. They reasoned, if you can call it that, that "out of the limits and jurisdiction of the United States" would cover all who were not born "within the territory and jurisdiction of the United States." What they were looking for was "out of the territory or jurisdiction of the United States. They wiffed at the required logic.

Their intent was to cover all not covered by 14A. They meant well. The words of the statute did not do that. John McCain and others were born outside the territory, but within the jurisdiction of the United States. They were not covered by 14A or any Federal law until the law was changed.

The words of the old Act were the law, not the intent of the people who wrote the words. The screwup was brought to the attention of Congress and they wrote a new Act.

Act of August 4, 1937, 50 Stat. 558, "Relating to the citizenship of certain classes of persons born in the Canal Zone or the Republic of Panama.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.
SEC. 2. Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, is declared to be a citizen of the United States.
Approved, August 4, 1937.

If intentions made law, the second Act would not have been necessary.

The 1866 comment says nothing of the words of 14A.

That's your opinion which derives from *YOUR* premise that *ONLY* the black letter text matters.

I absolutely disagree, and my premise is that *ORIGINAL INTENT* (of the law makers and valid representatives of the people) is all that matters.

If that intent is not clear in the text, then any evidence from elsewhere which clarifies it is worthy of consideration.

Words are a poor means of conveying concepts. Unfortunately they are the only way we have of passing them on, but we should always understand it is the concept that is important, not the choice of words.

It is as a result of confusing choices of words that many people now see the Declaration of Independence as an anti-slavery document rather than an assertion of INDEPENDENCE as a right.

Which part are you not able to comprehend, “all persons born” or “subject to the jurisdiction thereof”?

I understand both quite well, but it seems almost the entire legal community has fallen into both the Asch conformity experiment and the Milgram "Authority" experiment type mass delusion. Some of us out here can think for ourselves and are not swayed by crowds or "authorities" who know less about the matter than do we.

The 14th amendment (not legally ratified) was intended to grant citizenship to freed slaves. (So that they might be used as an electoral weapon against the Democrats)

It was never intended to produce "anchor babies" for illegals.

Or Abortion, or banning prayer in schools, or homosexual "marriage."

My problem is that I still don't *understand* (meaning: understand it the same way you seem to do) the whole "claim" usage. Humans are not "things" that can be "claimed" like property. One can "claim" some*thing* about someone (e.g. claim jurisdiction over someone), but not the person himself.

You can already "claim jurisdiction" over someone who is not a citizen, so what does it mean to "claim" a human being - citizen or otherwise?

Similarly to "claiming jurisdiction" over someone, one can "claim" authority over someone - but again, in this country, barring special circumstances (e.g. being in jail) anyone, citizen or otherwise, can leave whenever whey want. No Iron Curtain here.

Perhaps, if they brought back the draft, the state might have a "claim" over the person of a human being . . . which is one of the reasons the draft was questionable in the first place. As Robert Heinlein said (paraphrased because I don't remember the exact original): "Any nation whose citizens have to be coerced into military service is not worth defending." The question that I have not seen resolved is: Has the innocent child demonstrated that they are not "under the jurisdiction" of the US - meaning, not bound by the laws of our society - even if their parents have demonstrated that they have no allegiance to the US and its laws by entering illegally? To me, this is too much like original sin, where the children bear the sins of the parents, and I find that troubling as well. And since we can already put lawbreakers (who happen to be illegal aliens) in jail for whatever our laws declare to be illegal, what makes them *not* "under the jurisdiction" of the US regardless of citizenship?

But, to send this off into a completely different direction than the "birthright" citizenship question, I think anyone who does not assimilate into the American culture is not a "legitimate" citizen - regardless of where born. If they don't learn to speak/read/write English, how are they to know the basic responsibilities and authority of our government and of their responsibilities within it (i.e. how can they read and understand the Constitution)? If they feel it is appropriate to march under a foreign flag, have they thereby demonstrated that they are not "under the jurisdiction" of the US? My biggest problem with "birthright" citizenship is that too many of the potential citizens do not and never intend to assimilate into the American culture. And my second biggest problem with it, the whole concept of anchor babies where not only the unassimilated child, but all of his/her family now become permanent residents of the US (but perhaps never citizens, and no more "under the jurisdiction" of the US than someone who happened to be born here but does not see the Amercian culture as desirable).

To be blunt: I would deport not only all the illegal aliens, but also anyone - even one claiming US citizenship - who marches under a foreign flag. Send them all to that place that has their allegiance since the US does not.

It couldn't be the record of what the framers intended, could it?

No, it couldn't.

"A Matter of Interpretation," Federal Courts and the Law, by Antonin Scalia, 1997. This book contains an essay by Antonin Scalia and responses to that essay by professors Ronald Dworkin, Mary Ann Glendon, Laurence Tribe, and Gordon Wood. There is a final response by Antonin Scalia.

Laurence Tribe, pp. 65-6

Let me begin with my principal area of agreement with Justice Scalia. Like him, I believe that when we ask what a legal text means — what it requires of us, what it permits us to do, and what it forbids — we ought not to be inquiring (except perhaps very peripherally) into the ideas, intentions, or expectations subjectively held by whatever particular persons were, as a historical matter, involved in drafting, promulgating, or ratifying the text in question. To be sure, those matters, when reliably ascertainable, might shed some light on otherwise ambiguous or perplexing words or phrases - by pointing us, as readers, toward the linguistic frame of reference within which the people to whom those words or phrases were addressed would have "translated" and thus understood them. But such thoughts and beliefs can never substitute for what was in fact enacted as law. Like Justice Scalia, I never cease to be amazed by the arguments of judges, lawyers, or others who proceed as though legal texts were little more than interesting documentary evidence of what some lawgiver had in mind. And, like the justice, I find little to commend the proposition that anyone ought, in any circumstances I can imagine, to feel legally bound to obey another's mere wish or thought, or legally bound to act in accord with another's mere hope or fear.

Antonin Scalia, responding to Dr. Tribe, p. 133

He is correct that we both regard as irrelevant the intentions of the drafters....

Beginning on page 30 Scalia writes:

Extensive use of legislative history in this country dates only from about the 1940s. It was still being criticized by such respected justices as Frankfurter and Jackson as recently as the 1950s. Jackson, for example, wrote in one concurrence:
I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress. When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history should have made on them. Never having been a Congressman, I am handicapped in that weird endeavor. That process seems to me not interpretation of a statute but creation of a statute.

https://www.loc.gov/item/usrep457202/

Plyler v. Doe, 457 U.S. 202, 211 (1982)

In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase "within its jurisdiction." ¹⁰
We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.
__________
¹⁰ "Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States .... ." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used.
He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States."' Id., at 687.
Justice Gray concluded that "[e]very 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." Id., at 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouvé, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).

Conroy v. Aniskoff, 507 US 511, 519 (1993), Scalia, J., concurring

The greatest defect of legislative history is its illegitimacy.
We are governed by laws, not by the intentions of legislators. As the Court said in 1844: "The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself...." Aldridge v. Williams, 3 How. 9, 24 (emphasis added). But not the least of the defects of legislative history is its indeterminacy. If one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history. And the present case nicely proves that point.
Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends.

Aldridge v. Williams, 44 U.S. 9, 24 (1845)

In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.

United States v Union Pacific Railroad Company, 91 U.S. 72 (1875)

In construing an act of Congress, we are not at liberty to recur to the views of individual members in debate nor to consider the motives which influenced them to vote for or against its passage. The act itself speaks the will of Congress, and this is to be ascertained from the language used. But courts, in construing a statute, may with propriety recur to the history of the times when it was passed, and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it. Aldridge v. Williams, 3 How. 24; Preston v. Browder, 1 Wheat. 115, 120 [argument of counsel -- omitted].

Downes v. Bidwell, 182 U.S. 244, 254 (1901)

In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.

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