"From Feudalism to Consent: Rethinking Birthright Citizenshipby John C. Eastman, Ph.D Legal Memorandum #18
It is today routinely believed that under the Citi zenship Clause of the Fourteenth Amendment, mere birth on U.S. soil is sufficient to obtain U.S. citizen ship. However strong this commonly believed inter pretation might appear, it is incompatible not only with the text of the Citizenship Clause (particularly as informed by the debate surrounding its adoption), but also with the political theory of the American Founding.
It is time for Congress to reassert its plenary authority and make clear, by resolution, its view that the “subject to the jurisdiction” phrase of the Citizen ship Clause has meaning of fundamental importance to the naturalization policy of the nation.
The Original Understanding of the Citizenship Clause
The Citizenship Clause of the Fourteenth Amend ment provides 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.”[1] As manifest by the con junctive “and,” the clause mandates citizenship to those who meet both of the constitutional prerequi sites: (1) birth (or naturalization) in the United States and (2) being subject to the jurisdiction of the United States.
The widely held, though erroneous, view today is that any person entering the territory of the United States—even for a short visit; even illegally—is considered to have subjected himself to the juris diction of the United States, which is to say, sub jected himself to the laws of the United States. Surely one who is actually born in the United States is therefore “subject to the jurisdiction” of the United States and entitled to full citizenship as a result, or so the common reasoning goes.
Textually, such an interpretation is manifestly erroneous, for it renders the entire “subject to the jurisdiction” clause redundant. Anyone who is “born” in the United States is, under this interpre tation, necessarily “subject to the jurisdiction” of the United States. Yet it is a well-established doc trine of legal interpretation that legal texts, includ ing the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.[2]
The “subject to the jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”[3] As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents, remained a citizen or subject of the parents’ home country was not entitled to claim the birth right citizenship provided by the 1866 Act.
The jurisdiction clause of the Fourteenth Amendment is somewhat different from the jurisdiction clause of the 1866 Act, of course. The positively phrased “subject to the jurisdiction” of the United States might easily have been intended to describe a broader grant of citizenship than the negatively phrased language from the 1866 Act, one more in line with the modern understanding. But the relatively sparse debate we have regarding this provision of the Fourteenth Amendment does not support such a reading.
When pressed about whether Indians living on reservations would be covered by the clause since they were “most clearly subject to our jurisdiction, both civil and military,” for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that “subject to the jurisdiction” of the United States meant subject to its “complete” juris diction, “[n]ot owing allegiance to anybody else.”[4] And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now”[5] (i.e., under the 1866 Act). That meant that the children of Indians who still “belong[ed] to a tribal relation” and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin explicitly to exclude “Indians not taxed,” as the 1866 Act had done, was rejected as redundant.[6]
The interpretative gloss offered by Senators Trumbull and Howard was also accepted by the Supreme Court—by both the majority and the dissenting justices—in The Slaughter-House Cases.[7] The majority in that case correctly noted that the “main purpose” of the clause “was to establish the citizenship of the negro” and that “[t]he 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.”[8] Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Bradley in dissent from the principal holding of the case, likewise acknowledged that the clause was designed to remove any doubts about the constitutionality of the 1866 Civil Rights Act, which provided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power.[9]
http://www.heritage.org/Research/LegalIssues/lm18.cfm#_ftnref7
The provision before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation.