Having researched the 14th Amendment at some length, I have come to develop one serious distaste for it, irrespective of its secret construction, hasty passage, and coerced ratification. From equal protection for fictitious persons to "Selective Incorporation" this one Amendment has done more mischief to the rest of the Constitution than any other change in its history.
This article concerns the now infamous Citizenship Clause as regards supposedly conferring birthright citizenship to the children of illegal aliens:
Most people regard this clause as self-explanitory, believing that to be "subject to the jurisdiction," all one has to do is to be within the territory of the United States. Thus they conclude that children of illegal aliens are obviously US citizens.
Nothing could be further from the truth.
If I'm driving in Britain, I have to obey their traffic laws because I am WITHIN British jurisdiction. That doesn't make me a British SUBJECT. Now, lest you think there is a difference between that usage of the word "subject" and the one in the Citizenship Clause, let's consult the Bouvier Law Dictionary 1856 edition, as it is the one most commonly used at the time the 14th Amendment was drafted and ratified. In this instance, the contextual usage of "subject" in the definition is exactly the same as that employed in the Citizenship Clause:
2. In monarchical governments, by subject is meant one who owes permanent allegiance to the monarch. Vide Body politic; Greenl. Ev. §286; Phil. & Am. on Ev. 732, n. 1.
As written and ratified, the 14th Amendment was never intended to grant citizenship to the children of foreign subjects, whether they were here legally or not. Senator Jacob Howard, a co-author of the Citizenship Clause offered his interpretation in 1866:
Note the ambiguity in this statement. This was first confirmed in the Slaughterhouse Cases, the first Supreme Court interpretation of the 14th Amendment on record. The author of the majority opinion was a contemporary of those who drafted and debated the Amendment. The following text is from the majority opinion:
Slaughterhouse Cases, 83 U.S. 36 (1872) (USSC+)Thus, Senator Howard and Justice Miller recognized three classes of people to whom the 14th Amendment citizenship clause would not apply: foreigners (tourists here temporarily), aliens (those here illegally but who have no intention of leaving), and foreign diplomats (here legally and in a special protected status who will leave upon the expiration of their term).
Opinions
MILLER, J., Opinion of the Court
"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 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.
Returning to the Amendment itself, Section 5 cedes control of implementing its provisions back to Congress, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.". So, because the Constitution is a limiting document, the wording of the 14th Amendment citizenship clause means that no new categories can be invented outside those in the Amendment, such as children of visiting or resident aliens; i.e., they may not grant birthright citizenship to the children of illegals, nor the equivalent.
Justice Miller's aside in the Slaughterhouse Cases is not the holding in the case, and therefore has no compulsory value as precedent. However, the majority opinion, because it was contemporaneous with the ratification of the 14th Amendment, records the understanding of those who drafted, passed, and ratified the Amendment. It therefore does have value in constructing an originalist interpretation.
Still, Miller's statement is mere dicta, an assertion having little to nothing to do with the case under consideration. Dicta is normally not considered to be equivalent to precedent. Would that such were really true. The fact is that when the Courts want to use it as such, they do. Consider the consequences of Santa Clara v. Southern Pacific (118 U.S. 394 (1886)). A headnote, written by the court clerk after the decision and having NOTHING to do with the case, supposedly established equal protection for fictitious persons (corporations), (which may in fact have been (railroad lawyers) Conkling and Binghams original intent, but was not the understanding of those ratifying the Amendment). Interestingly, that self same court clerk, Court Reporter J. C. Bancroft Davis, was a corporate socialist, a student of Marx, and had a record of falsifying documents. So to ignore Chief Justice Miller's interpretation in the Slaughterhouse Cases while adhering to a clerk's headnote in Santa Clara v. Southern Pacific makes a mockery of jurisprudence, "settled law" notwithstanding.
US v. Wong Kim Ark effectively says that Miller's opinion didn't matter because the majority was going to redefine the phrase, "subject to the jurisdiction," as they saw fit, which is consistent with the behavior of the corporate attorneys who dominated the Supreme Court in those days.
So let's take a look at just who these concurring legal geniuses on the Court really were in US v. Wong Kim Ark:
We have George Shiras, a prominent (drum roll please) railroad lawyer with no prior judicial experience and friend to corporate railroad barons with a rather keen interest in retaining Chinese coolies. Kinda reminds you of something rather more contemporary, doesn't it?
We have Horace Gray, author of the majority opinion, a buddy of Brandeis, Holmes, and other noted court activists and a big fan of paper money.
We have Yalie David Brewer, founder of the American Society of International Law, peace advocate, and judicial activist toward using the court to supersede State laws.
We have Yalie Henry Brown, , author of Plessy v. Ferguson!!!, and a huge fan of the use of Admiralty Law as a regulatory means (even though he hired a substitute to serve in the military for him in the Civil War).
The The dissenting opinion to this travesty was vigorous, a work that rings with predictions of the consequences we see today. It was written by Chief Justice Melville Fuller, a big fan of Thomas Cooleys Treatise on Constitutional Limitations and a champion of individual property rights. Joining him was John Marshall Harlan, who had the temerity to oppose broad interpretation of the Commerce Clause and opposed Plessy v. Ferguson. (Justice McKenna did not participate as he was newly confirmed.)
Fuller's dissent began with simple logic, which should have been enough to collapse the opposition were they not committed to corrupted ends:
The tie which bound the child to the crown was indissoluble. [169 U.S. 649, 707] The nationality of his parents had no bearing on his nationality. Though born during a temporary stay of a few days, the child was irretrievably a British subject. Hall, Foreign Jur. 15.
The rule was the outcome of the connection in feudalism between the individual and the soil on which he lived, and the allegiance due was that of liege men to their liege lord. It was not local and temporary, as was the obedience to the laws owed by aliens within the dominions of the crown, but permanent and indissoluble, and not to be canceled by any change of time or place or circumstances.
It's pretty strong language for a Supreme Court Justice. He has good reason. Citizenship appertains exclusively to the allegiance of parentage, else the choices and preferences of those parents as legitimately exercised under law, including changing citizenship by naturalization, is not something so easily superseded unless the State has a claim on the baby superceding the allegiances of the parents!!! Allegiances of parentage are not so easily transgressed in law as one might suppose either. Back to the dissenting opinion:
Its really quite an opinion; I recommend that everyone to read it. Fuller goes on to cite Story, Taney, and any number of opinions from within the Department of State, proving that Gray et al. could in no way honestly be citing historical precedent within the US as regards common law in this instance. He includes citation to the Federal Convention as well, indicating that the issue was raised and disposed in opposition of the majority opinion.
When hes done with court and general pre-war precedent regarding citizenship, then Fuller looks to the essential precedent to the 14th Amendment, the Civil Rights Act of 1866, passed a mere two months before the drafting of the Amendment:
The words 'not subject to any foreign power' do not in themselves refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that, nevertheless, they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens.
Additionally, citizens of a foreign country are usually expressly prohibited from taking other citizenship without having renounced their native allegiance. It is patently illogical that the standards applied to children would be different than that applied to their parents.
Fuller completed his treatise addressing treaties between China and the US as well.
As to Mr. Howard's oratory in chambers (as opposed to written work), whether it should have included an "OR," frankly, that you find it necessary to make a Constitutional distinction between the children of diplomats and those of invaders and travellers is to render our treaty understandings with those countries and their jurisdiction over their citizens laughable. It is to show NO RESPECT for any other nation on earth and flies in the face of our nation's understanding of equal protection under the law.
My point in all this detail is that the children of LEGAL aliens aren't legitimate 14th Amendment citizens either; in fact the Amendment was intended to preclude that conclusion.
However, we live in a nation of laws, not of men - making the slanted biographies of various individuals you've provided utterly irrelevant to the question.
The entire substance of the argument hinges on Senator Howard's contention that the 14A does not confer citizenship on "persons born in the United States who are foreigners." That's the point of contention here, as everyone agrees that aliens and diplomatic families are not citizens.
the question is: what is a "person born in the United States who is a foreigner"?
Senator Howard's wording begs the question with its vagueness, apart from the fact that his claims are not a definitive interpretation of the legislation.
The concrete discussions that took place regarded Chinese immigrants who, at that time, were indeed foreigners and their children were also foreigners because - by formal treaty - Chinese subjects born in the USA retained their Chinese nationality as a condition of the Chinese Emperor permitting the emigration of Chinese subjects.
I will point out that at the time of the 14A debates in Congress non-citizen subjects of the British crown from Ireland were having children who grew up as US citizens.
Thank you. And again for mentioning how destructive the doctrine of substantive due process has been.