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.

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.

Diplomats are not subject to our laws. They are not subject to our criminal justice system (except possibly in extremely limited circumstances). The worst we can do is send them home. The same is not true of illegals. We can throw illegals in jail (although we don't do that nearly often enough).

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.

They've had limited success because it's a preposterous argument. It's absurd on its face.

I don't like the law as it stands. We should change it. But those of us who believe in the rule of law know that there's only one way to do that, and it isn't by bending the law to get the result we want.

The article clearly states:

Only a citizen can make a citizen through the process of childbirth.

I know plenty of American citizens who were born while their parents were legal immigrants, but not US citizens.

This article states that:

Only a citizen can make a citizen through the process of childbirth.

Offspring of refugees, permanent residents, parolees, and other legal immigrants are not US citizens by birth, according to the author.

Do you think the author is wrong?

Where do you think the author goes wrong?

His whole argument is based on the premise that:

Only a citizen can make a citizen through the process of childbirth

For instance, look at this paragraph:

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.

He does not distinguish between illegal aliens and aliens. He groups all of them together.

He says that the Fourteenth Amendment framers 'did not not recognize as a matter of law that a legal alien giving birth to a child within the limits United States, is by itself, an act of naturalization on the part of the mother.'

Do you see why some Freepers think that the whole article is thin on logic and thick on fallacies?

If you ever write a vanity post or blog article addressing this issue in more cogent manner than the current author, please let me know.

For instance, I'll be interested in an historical analysis where you compare the contradictory Supreme Court decisions on this issue, and how it became current settled law that US-born children of illegal aliens are US citizens.

I enjoy your writing style.

, the court cannot create new rights that are not already expressly granted by the Constitution

The Constitution does not grant any rights. It protects them, sometimes it restricts them by granting a power to government, but it does not grant them. In Jefferson's words of the Declaration of Independence, they are "endowed by their Creator". Not all rights are expressly protected either, that's why the put in the ninth amendment.

This article confuses jurisdiction with allegiance, they are hardly the same thing.

Anchor babies are a creation of the law, and the courts, not the 14th amendment.

Even if a child born to illegals is a natural born citizen, it does not follow that the parents should be allowed to stay. They can leave the child with legals, or take it back with them, with the child having the ability to return as a citizen. I know at least two people whose parents did just that, that is return to their home country, with the child eventually returning as a citizen. Both good ones too.

She indicated that most of them then returned home. But, they had their American baby so they could come back later. This was my very first exposure to the problem.

That's a separate issue from the citizenship of the child. I know well to do Mexicans, with no intent of ever living in the US, who come to the US to give birth, which they pay the bills for. They do it not for themselves, but in fear that Mexico might someday descend into left wing chaos (and it could happen if the current PRI candidate gets elected this year, rather than the PAN cannidate (PAN is Fox's party, and Fox is the first President not from PRI since the last revolution). They want their kids to have somewhere to go, their own fate is entirely secondary.

Even if a child born to illegals is a natural born citizen, it does not follow that the parents should be allowed to stay. They can leave the child with legals, or take it back with them, with the child having the ability to return as a citizen. I know at least two people whose parents did just that, that is return to their home country, with the child eventually returning as a citizen. Both good ones too.

This I agree with.

That the baby is a US citizen cannot be denied by any serious reading of the 14th Amendment. But the parents are not citizens, and I do not believe that they should get any rights of residence based on relation to a minor citizen.

Let the baby stay, if it has a resident or citizen guardian. If not, then the baby must return to the parents' country, and may return when he reaches the age of majority.

If the baby has no legal guardian in the US, and the parents are willing to give up their rights to the child, then the child may stay, going to child services for placement with a new family.

Either way, the non-citizen illegals go home.

And I would add teeth to the law, and ban them permanently. They cannot be sponsored eighteen years later by their citizen child. The child, who is blameless, may reap the benefits of citizenship as an adult. The parents, who are criminals, may never do so.

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.!!

By entering the country illegally, they are declaring that they are not subject to the jurisdiction of the United States.

They are, but the child is not. The Child is subject to the jurisdiction of the United States. The Constitution says the person, not their parents, must be "subject to the jurisdiction". The only children born in the US who are not fully subject to the jurisdiction of the US are those covered by agreements with other countries, such as the children of ambassadors, military personnel, and some other expatriates.

But just because a child is a citizen, does not mean that he/she must be an "Anchor Baby". The status only accrues to the child, not to the parents.

The fact of being born on US soil does not automatically make the child a citizen. If it did there would be no need to add the "and subject to..." qualifie

I didn't say it did. I'm saying *the child* is subject to the jurisdiction of the US, even if the parents are not. Only in those cases defined or international agreement with the parents country (or equivlaent multi-national agreement), is the child not "subject to the jurisdiction". The case of the Indian tribes is illustrative. Indian tribes were considered semi sovereign entities, and their members were not fully subject to the jurisdiction of the United States, they could not be drafted for example, until the law was changed to make it so. But the law cannot go the other direction, making some group not citizens who heretofore were, that would be a bill of attainder, which is prohibited by the Constitution. Naturalized citizens can individually have their citizenship revoked, for crimes committed or fraud during the naturalization procedure, but natural born citizens cannot. More's the pity as I can think of any number of citizens who richly deserve such a fate. Michael Moore, Alex Baldwin, and several others who promised to leave the country if certain events came to pass, but when they did, reneged on their promise.

A child born to US citizens abroad is a US citizen, and subject to our law, not the law of the nation in which he is born.

See if that holds if a kid born of US citizens, in say Turkey, violates their drug laws. It is not universally true, it depends on the circumstances and the country in question. It is true for children of diplomats, and in most cases US military stationed in a host country.

It's also irrelevant, it's our Constitution that controls, and it clearly states that if the child is born in the US and it, not its parent(s), is subject to the jurisdiction of the US, which it is unless exempted by international agreement with the country of its parents.

In many cases, the child may have duel citizenship if US law (including the Constitutional provision in question) says one thing, and the law of the Country of the Parents says another. I seem to remember that in such cases the child must declare one way or the other by a certain age, but I could be wrong about that.

Because there are exceptions, defined by law. Those are the children of diplomats, foreign military, etc. The cases that are cited in the quotes above by the CongressCritters debating the resolution. At the time, but not now, many of the Indian tribes fell into that category as well. OK, so do you think Congress was royally confused when when they talked about parents owing allegiance to the U.S.? Why was not Irish children declared U.S. citizens at birth, but had to wait till till their parents were naturalized in 1908? How come the the civils rights bill require allegiance to the United States for children born to be a citizen?

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