The UnConstitutionality of Citizenship by Birth to Non-Americans

By P.A. Madison Former Research Fellow in Constitutional Studies Last updated 4/04/06

We well know what federal law says on the subject of children born to non-citizens (illegal aliens) within the jurisdiction of the United States by declaring them to be American citizens. But what does the Constitution of the United States say about the issue of giving American citizenship to anyone born within its borders? As we explore the Constitutions Citizenship Clause, as found in the Fourteenth Amendment, we can find no Constitutional authority to grant such citizenship to persons born to non-American citizens within the limits of the United States of America.

We are, or should be, familiar with the phrase, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." This can be referred to as the Citizenship Clause of the Fourteenth Amendment, but what does "subject to the jurisdiction" mean? Jurisdiction can take on different meanings that can have nothing to do with physical boundaries alone--and if the framers meant geographical boundaries they would have simply used the term "limits" rather than "jurisdiction" since that was the custom at the time when distinguishing between physical boundaries, reach of law or complete allegiance to the United States.

It is important to understand what the text of the clause actually says: subject to the jurisdiction of the United States and not any particular State jurisdiction. This is why laws at the time were written to include both limits and jurisdiction of the United States when speaking of aliens. Take for example U.S. title XXX of 1875, sec 2165 where it states: "Any alien who was residing within the limits and under the jurisdiction of the United States..."

It’s also equally important to understand that there is only one path for which an alien can come under the jurisdiction of the United States for purposes of citizenship: Through the process of naturalization that, among other things, requires a person to renounce all allegiance to their country of origin. The Fourteenth Amendment framers did not recognize as a matter of law that an alien giving birth to a child within the limits United States, is by itself, an act of naturalization on the part of the mother. This is because the naturalization of aliens is a process of rules set forth in naturalization laws, and not something an individual can accomplish through their own acts outside of these rules of law.

The principle behind birthright is the same as it was before and after the adoption of the 14th amendment: Only a citizen can make a citizen through the process of childbirth. Any other avenue to citizenship requires an act of naturalization under naturalization laws or perhaps, by treaty.

We are fortuante to have the highest possible authority on record to answer this question of how the term "jurisdiction" was to be interpreted and applied, the author of the Citizenship Clause, Sen. Jacob M. Howard (MI) to tell us exactly what it means and its intended scope as he introduced it to the United States Senate in 1866:

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.

The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.[1]

One significant highlight about what Sen. Howard says above is that he regards the clause as simply declaratory of the "law of the land already" and is a virtue of "natural law" and "national law." Why this is significant is because some have mistakenly argued that the Citizenship Clause was somehow rooted in Common Law.

Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment gives us the definition of what "subject to the jurisdiction thereof" means under the Fourteenth Amendment:

[T]he provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.

Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.[2]

Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.[3]

In other words, only children born to American citizens can be considered citizens of the United States since only a American citizen could enjoy the "extent and quality" of jurisdiction of an American citizen now. Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the Constitution:

[Now], all this amendment [Citizenship Clause] provides is, that all persons born in the United States and not subject to some foreign Power--for that, no doubt, is the meaning of the committee who have brought the matter before us--shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.[4]

No doubt in the Senate as to what the Citizenship Clause means as further evidenced by Sen. W. Williams:

In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, 'subject to the jurisdiction of the United States,' to mean fully and completely subject to the jurisdiction of the United States.[5]

Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:

[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen...[6]

The reason the language "subject to the jurisdiction thereof" was chosen for the Citizenship Clause instead of the civil rights bill language that read "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed" was because Howard feared States could eventually impose a tax on Indian's, making them eligible for citizenship under the Fourteenth. Because of the language "subject to the jurisdiction thereof" required direct allegiance to the United States, Indian's would be disqualified because they owed their allegiance to their respective tribes which in return were considered foreign nations. In 1872 Sen. James K. Kelly sums up the clause and national law on the subject in the most clearest language that anyone could understand when he said "in order to be a citizen of the United States he must been not only be born within the United States, but born within the the allegiance of the United States."[7]

Further convincing evidence for the demand of complete allegiance required for citizenship can be found in the "Naturalization Oath of Allegiance to the United States of America," an oath required to become an American citizen of the United States. It reads in part:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen...

Of course, this very oath leaves no room for dual-citizenship, but that is another troubling disregard for our National principles by modern government. Fewer today are willing to renounce completely their allegiance to their natural country of origin, further making a mockery of our citizenship laws. In fact, recently in Los Angeles you could find the American flag discarded for the flag of Mexico in celebration after taking the American Citizenship Oath.

It's noteworthy to point out a Supreme Court ruling in Afroyim v. Rusk, 387 U.S. 253 (1967), where the court completely discarded the fourteenth's Citizenship Clause scope and intent by replacing it with their own invented Citizenship Clause. The court in effect, ruled that Fourteenth Amendment had elevated citizenship to a new constitutionally protected right, and thus, prevents the cancellation of a persons citizenship unless they assent.

Unfortunately for the court, Sen. Howard effectively shoots down this feeble attempt to replace his clause with their own homegrown Citizenship Clause. Firstly, Howard finds no incompatibility with expatriation and the fourteenth's Citizenship Clause when he says: "I take it for granted that when a man becomes a citizen of the United States under the Constitution he cannot cease to be a citizen, except by expatriation for the commission of some crime by which his citizenship shall be forfeited."

Secondly, Sen. Howard expressly stated, "I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me and hold lands and deal in every other way that a citizen of the United States has a right to do."

The question begs: If Howard had no intention of passing a sweeping act of naturalization--how does the court elevate Howard's Citizenship Clause to a new constitutionally protected right that cannot be taken away since this would certainly require a sweeping act with explicit language to enumerate such a new Constitutional right? Remember, the court cannot create new rights that are not already expressly granted by the Constitution.

A third problem for the court is the fact both Howard and Bingham viewed the Citizenship Clause as simply "declaratory" of what they regarded "as the law of the land already." This then requires flights of fantasy to elevate Howard's express purpose of inserting the Citizenship Clause as simply removing "all doubt as to what persons are or are not citizens of the United States," and not to elevate citizenship to a new protected Constitutional right. Citizenship is a privilege, not a right as say the right to freedom of religion is, and therefore, can be taken away just as any other privilege can.

James Madison defined who America seeked to be citizens among us along with some words of wisdom:

When we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuse. It is no doubt very desirable that we should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours. But why is this desirable? Not merely to swell the catalogue of people. No, sir, it is to increase the wealth and strength of the community; and those who acquire the rights of citizenship, without adding to the strength or wealth of the community are not the people we are in want of.[8]

In a nutshell, it means this: The Constitution of the United States does not grant citizenship at birth to just anyone who happens to be born within American borders. It is the allegiance (complete jurisdiction) of the child’s birth parents at the time of birth that determines the child’s citizenship--not geographical location. If the United States does not have complete jurisdiction, for example, to compel a child’s parents to Jury Duty–then the U.S. does not have the total, complete jurisdiction demanded by the Fourteenth Amendment to make their child a citizen of the United States by birth. How could it possibly be any other way?

The framers succeeded in their desire to define what persons are, or are not, citizens of the United States. They also succeeded in making both their intent and construction clear for future generations of courts and government. Whether our government or courts will start to honor and uphold the supreme law of the land for which they are obligated to by oath, is another very disturbing matter.

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[1]. Congressional Globe, 39th Congress (1866) pg. 2890 [2]. Id. at 2893 [3]. Id. at 2895 [4]. Id. at 2893 [5]. Id. at 2897 [6]. Id. at 1291 [7]. Congressional Globe, 42nd Congress (1872) pg. 2796 [8]. James Madison on Rule of Naturalization, 1st Congress, Feb. 3, 1790.

Permission is granted to use, copy or republish this article in its entirely only.

A child born to legal immigrants is under the Constitution a citizen of the United States, as long as the child is not a subject of a foreign power. A child of legal visitors (as opposed to immigrants) is subject to a foreign power and thus is not similarly thus a citizen. The act of legal immigration is the declaration of subjection to our laws that is key to fulfilling the "and" clause.

In the case of an illegal alien, the sovereign power to which he is subject is the nation of the alien's citizenship. If we are to expel such an alien we hand them over to the government of that nation, we do not simply drop them off at the border. This is evidenced by the fact that if the nation in which the alien holds citizenship does not willingly receive the alien, we are stuck with them until we find a nation that is willing to take on the alien as a subject.

I think this is my favorite part:

Mr. HOWARD: I now move to take up House joint resolution No. 127.

In the case of an illegal alien, the sovereign power to which he is subject is the nation of the alien's citizenship.

I disagree. If that alien, subject to sovereign power of his homeland, commits a crime and is then apprehended, he is most certainly subject to the jurisdiction where the crime is committed....even if he protests such jurisdiction or did not intend to be come subject to it.

Jurisdiction is not a matter of the consent or intent of the subject, but rather that of the sovereign power.

Precisely.

Of course they are subject to our jurisdiction. Otherwise we would not legally be able to punish them for breaking the law (that we too often choose not to is another matter, but we certainly can).

Foreign diplomats and the like are truly not subject to our jurisdiction, which is why their children do not get automatic US citizenship upon being born in this country. That's what the clause means.

In the latest update, I found Madison added the following:

Here the law makes the distinction between simply residing in the United States and being under the jurisdiction of the federal government. Simply residing in the United States does not automatically put an alien under the jurisdiction of the United States. The reason mainly has to do with the fact the US Constitution does not give the federal government jurisdiction over a resident residing within a State -- only the States themselves was given this sole jurisdictional role.

You still miss the point. The phrase "subject to the jurisdiction thereof" does not refer to the mere legal jurisdiction of the laws of the United States, as that would be true of virtually any child born in the United States, even the child of Diplomats.

In fact, what this article and others have tried to convey with limited success is that the "jurisdiction" referred to is more than mere legal jurisdiction. It is "complete jurisdiction", that is, a singular claim on the loyalty and affection of the individual.

You are not arguing against the article, but against a Straw Man.

In any case, you can get legal citizens IF they naturalize.

The most important part of a guest worker program is the application must be done in person, and must be done at a US embassy or consulate located outside the United States.

That gives the illegals incentive to GO HOME.

Brings up an interesting question. If "anchor babies" are no longer citizens, what happens if they grow up, are found out (perhaps not even knowing their status) and are to be deported -- only to have the country of their parents' origin refuse to take them? Do we then have people without citizenship in any nations? What do we do with them?

How about a single, female illegal alien who has a baby fathered by an American citizen? Is the baby American? What if the mother can't identify the father? Or if she knows the father, but he refuses to claim paternity, can she, on behalf of her baby, get genetic testing done to confirm the paternity of her baby?

The relationship of the United States to an illegal alien who commits a crime is wholly dependent on our treaty obligations to the nation of the alien's citizenship. An alien has no rights here other than stipulated by treaty. This is why, likewise, a US consulate is often able to rescue an American from punishment in foreign lands where our citizens have inadvertently fallen afoul of the law.

In fact, what this article and others have tried to convey with limited success is that the "jurisdiction" referred to is more than mere legal jurisdiction. It is "complete jurisdiction", that is, a singular claim on the loyalty and affection of the individual.

But what is the source of this more profound definition of jurisdiction, and where is the evidence that "complete jurisdiciton" was what was intended by the use of the single word "jurisdiction?"

Foreign diplomats and the like are truly not subject to our jurisdiction, which is why their children do not get automatic US citizenship upon being born in this country. That's what the clause means.

No sirreee, Bobby. no cigar for you!

It's true that under our present twisted interpretation of the language of the 14th we only apply the porvisions to the children of accredited diplomats, but that's an error.

The drafters NEVER intended the phrase "and subject to the jurisdiction thereof" to refer to mere legal jurisdiction. Anyone who has given a fair reading to either the plethora of articles on this subject or to the legislative history of the 14th would know that.

"If that is true then why did Title XXX make a distinction between residing in the U.S. AND jurisdiction of the U.S.? If we take your hairbrain analysis seriously there would be no need because simply residing in the U.S. puts you under the jurisdiction of the U.S.!!"

That last sentence is exactly right.
Even a deportation hearing makes an illegal alien "subject to the jurisdiction of the US." Any foreigner who commits a crime in the US, whether they are from Mexico or Bahrain is "subject to the jurisdiction of the United States and the state where they reside."
My girlfriend is an "anchor baby" US citizen. Her parents came as illegals but they became legal US citizens through President Reagan's 1986 amnesty. Laws change and EVERY foreigner who enters the US, legally or illegally is subject to the jurisdiction of the United States and the state in which they reside. Until the 14th amendment is revised or revoked, that is the law of the land.

That sounds like a minority interpretation, not a clear and settled matter.

A child born to aliens is a citizen of their parents' nation. It is possible for a person to be stateless if no nation is willing to recognize their citizenship. The Palestinians, for example, are in this position - no nation claims them as citizens. What happens to them is entirely up to the choice of the nation where they reside.

In the case of a single female alien who claims American paternity for her child, it is arguable that, if paternity is proven, subjection to the United States is derivable from the father. If it cannot be proven than the only provable citizenship would be that of the mother's nation. Genetic testing would likely constitute adequate proof, if the results were confirmed. In the days before genetic testing, or in the absence of such a test for any reason, only the mother's citizenship being provable, the child would share its mother's citizenship (assuming that was in accordance with the laws of that nation).

As I read this thread, I have come to the conclusion that there is virtually no one here that has not fallen victim to the circular logic exemplified by this post.

Of course, everyone physically present within the territorial limits of the United States is to one extent or another subject to the jurisdiction of its laws.

So what?

That was very explicitly clarified during the legislative debates, and now very determinedly ignored.

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