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.
The comments you cited were about the CRA of 1866 at a time when the Citizenship Clause of 14A, with its different verbiage, did not exist. A comment about the CRA of 1866 is not germane to the meaning of the different words of 14A.
-PJ
Some here think if you can get arrested, then you are subject to the jurisdiction thereof. (Basically posters like woodpusher claim only diplomats and hostile enemies are not subject to the jurisdiction thereof.)
Basically posters such as woodpusher cite and quote U.S. Supreme Court and other court precedents and posters such as OA5599 spew their own brainfarts.
U.S. Supreme Court: Slaughterhouse Cases, 83 U.S. 36, 73 (1872)
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The 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.
U.S. Supreme Court: Wong Kim Ark at 169 U.S. 649, 658-59:
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
In re Look Tin Sing, Circuit Court, California, 21 Fed R 905 (1884), Opinion of the Court by U.S. Supreme Court Justice (1863-1887) Stephen Field, sitting as a Circuit Court justice.
At 21 Fed R 906:
The first section of the fourteenth amendment to the constitution declares that “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.” This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words “subject to the jurisdiction thereof.” They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must, at the time, be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This ex-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents.
At 21 Fed R 908-909:
With this explanation of the meaning of the words in the fourteenth amendment, “subject to the jurisdiction thereof,” it is evident that they do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship, and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.
Ludlam v. Ludlam, 84 Am. Dec. 193, 26 New York 356 (1863), first Headnote at 193,
Common Law at Time of Adoption of Federal Constitution Determines Question of Citizenship, in the absence of any other law upon the subject.
Munro v. Merchant, 26 Barb. 383 at 384 (1858) headnote states,
“A child born in this state of alien parents, during its mother’s temporary sojourn here, is a native born citizen.”
At 400-401, Opinion of the Court
It is further contended, on the part of the defendant, that the plaintiff himself is an alien. He was born in Ballston Spa, in this state, while his father was a resident of Canada, and returned to his father's domicil, with his mother, within a year after his birth. His mother was temporarily there—without any actual change of residence, either on her part or that of his father. It is argued that, at common law, a natural born subject was one whose birth was within the allegiance of the king. (Bac. Ab. tit. Alien, A. Com. Dig. A. and B. 7 to 18. Bl. Com: 336, 74.) The cases of children of ambassadors, born abroad, and of children born on English seas were considered exceptions. Chancellor Kent, in his commentaries, defines a native born citizen to be- a person born within, and an alien one born out of, the jurisdiction of the United States. (2 Kent's Com. 37—50.) In Lynch v. Clarke, (1 Sand. Ch. B. 583,) the question was precisely as here, whether a child born in the city of New York of alien parents, during their temporary sojourn there, was a native born citizen or an alien; and the conclusion was, that being born within the dominion and allegiance of the United States, he was a native born citizen, whatever was the situation of the parents at the time of the birth.
Ankeny v. Governor of the State of Indiana, No. 49D10-0812-PL-055511, 2009 WL 1632611 (Ind. Marion County Super. Ct. Mar. 16, 2009) (dismissing challenge to McCain’s and Obama’s eligibility), aff’d, 916 N.E.2d 678 (Ind. Ct. App. 2009) (holding that Obama, who was born in Hawaii, is a “natural born citizen” eligible to be president), transfer denied, 929 N.E.2d 789 (Ind. 2010).
In Ankeny 916 N.E.2d 678 (2009), the Opinion of the Court of Appeals states:
The Wong Kim Ark Court explained:The fundamental principle of the common law with regard to English nationality was birth within the allegiance—also called 'ligealty,' 'obedience,' 'faith,' or 'power'—of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual,—as expressed in the maxim, 'Protectio trahit subjectionem, et subjectio protectionem,'—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.This fundamental principle, with these qualifications or explanations of it, was clearly, though quaintly, stated in the leading case known as 'Calvin's Case,' or the 'Case of the Postnati,' decided in 1608, after a hearing in the exchequer chamber before the lord chancellor and all the judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co. Litt. 8a, 128b; Lord Hale, in Harg. Law Tracts, 210, and in 1 Hale, P.C. 61, 62; 1 Bl. Comm. 366, 369, 370, 374; 4 Bl. Comm. 74, 92; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173-177, 741.
* * * * * *
Lord Chief Justice Cockburn . . . said: 'By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.' Cockb. Nat. 7.
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with Reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics: "British subject' means any person who owes permanent allegiance to the crown. 'Permanent' allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien, who, because he is within the British dominions, owes 'temporary' allegiance to the crown. 'Natural-born British subject' means a British subject who has become a British subject at the moment of his birth.' `Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.' The exceptions afterwards mentioned by Mr. Dicey are only these two: '(1) Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person's birth is in hostile occupation, is an alien.' '(2) Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the crown by the sovereign of a foreign state is (though born within the British dominions) an alien.' And he adds: 'The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the crown.' Dicey, Confl. Laws, pp. 173-177, 741.
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established. [13]
[916 N.E.2d 688]
Id. at 655-658, 18 S.Ct. at 459-460.
Also, as quoted in Wong Kim Ark, Justice Joseph Story once declared in Inglis v. Trustees of Sailors' Snug Harbor, 28 U.S. (3 Pet.) 99, 7 L.Ed. 617 (1830), that "Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth." Wong Kim Ark, 169 U.S. at 660, 18 S.Ct. at 461 (quoting Inglis, 28 U.S. (3 Pet.) at 164 (Story, J., concurring)). The Court also cited Justice Curtis's dissent in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1856):
The first section of the second article of the constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the constitution, which referred citizenship to the place of birth.
Wow you copy and pasted a lot of wikipedia information to affirm that I am right.
There is no part in the Constitution that says you must interpret it as a textualist or with strict constructionism.
Thank you for affirming that.
Have you ever heard the term “court fact?” I’ve always heard it called “court opinion.”
Does Jackson get in trouble if her opinion how a law should be interpreted is different than Thomas? Think about how often they are on the same side of a decision. Do any of the justices violate the Constitution if their opinion is different than yours or some dead guy in England who wrote an opinion hundreds of years ago?
If the answer is no, then you are just bloviating. You don’t know how to interpret the 14th amendment. You have your opinion, and everyone else has theirs. Only five opinions count. They might very well agree with you. Or they might find, like me, that they agree with the framers.
I await your wikipedia copy and paste to explain how children of Indians not taxed were not considered US citizens despite being subject to the jurisdiction thereof. Took passage of a law in the 20th century to make them citizens, not the 14A.
Maybe they were all children of ministers?
You’ll have to give him a minute. It takes a lot of time to go through all the wiki law pages and cherry pick the things that agree with his preformed opinions.
When you make your argument about your debating opponent, you are losing.
What I said was that the 14th amendment was "ratified" by puppet governments, in a manner completely contrary to the founders/framers design of "consent of the governed."
You very well know that those puppet governments only voted for the 13th, 14th and 15th amendments because they were forced to do so by occupation armies.
Constitutional law is not supposed to operate through coercion. It should be amended through a legitimate process of consent by each state.
Take that argument to court.
I already know how to spell "stare decisis!"
That a court says so, does not automatically compel me to ignore what is actually true.
The later botched verbiage did not exist yet, (I'm telling you to look up Senator Howard's comments on how they ended up botching the verbiage) but the concept they were attempting to implement was quite clear in the minds of the participants.
As I said before, words are a poor way to convey complex concepts to others, but as the only tool we have to do this, we rely on them even with their tendency to result in a miscommunication.
A comment about the CRA of 1866 is not germane to the meaning of the different words of 14A.
Absolutely disagree. It clarifies greatly exactly what they were attempting to do with the 14th.
The differences between the CRA and the 14th is that the CRA is clearer, and makes more sense, but the 14th cannot be changed or undone by a subsequent congress.
They were looking to accomplish what the CRA attempted to do, but with the permanence of an amendment. They just botched the verbiage, and as I said, there is an interesting story behind that which you should read.
And Merry Christmas Woodpusher!
BIRTHRIGHT CITIZENSHIP AND THE DUNNING SCHOOL OF UNORIGINAL MEANINGS
Evan D. Bernick, Paul Gowder & Anthony Michael Kreis†
† Associate Professor of Law, Northern Illinois University College of Law; Professor of Law, Northwestern University Pritzker School of Law; and Assistant Professor of Law, Georgia State University College of Law. Authors’ names are listed in alphabetical order.
When you make your argument about your debating opponent, you are losing.What I said was that the 14th amendment was "ratified" by puppet governments, in a manner completely contrary to the founders/framers design of "consent of the governed."
Are the words of 14A Section 1 the law of the land? It is a yes or no question.
I fear that if I read the whole thing, I will have wasted more of my time than I like.
You can find dozens of establishment arguments on the topic, and I suspect this is just another one. They tend not to address contrary evidence.
It is the defacto law of the land, but not the legitimate ratified law of the land.
Fox News host Mark Levin argues the framers of the 14th Amendment did not intend to grant birthright citizenship to children of illegal immigrants on ‘Life, Liberty & Levin.’
https://www.youtube.com/watch?v=I07If5vKqww
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