"Birthright citizenship" isn't required by the Constitution, no matter how many pundits tell you otherwise. Tomorrow, the Supreme Court hears oral arguments to decide the matter once and for all.
Possible but some weaknesses. For one, Kim did have allegiances to another country, namely China. Similarly an American born abroad has allegiances to the US even if both his parents are lawful residents of some other country. Fundamentally whether your parents are in a country legally or legally isn’t dispositive of where your allegiances lie. Most obviously if your parents are merely lawful residents they certainly have allegiances to the country they come from as does their child.
Many countries of course assert that a person is their citizen even if that’s rather unwanted. Ted Cruz for example. In Australia politicians have had to resign when they discovered they were citizens of other countries unbeknownst to them.
Not to mention this would have been easily remedied in the language. If the intent of the amendment were as you say, why not simply write ‘born in the US to at least one parent lawfully resident”? It wouldn’t have been hard.
1. Wong Kim Ark's parents were legal residents, so they were in the same position as a modern green card holder would be today, radically distinguishable from an illegal alien.
2. Citizenship by descent from one or more American parents is not a subject of this case.
3. "Allegiance" is not a feeling, which is all the more true when you recall that we're talking about infants. For the purposes of the law, allegiance is a matter of citizenship and domicile. If a trespasser gives birth in your house, the child doesn't inherit from you. If an illegal alien gives birth in France, parent and child get deported. But the reason is that children inherit their parents' citizenship and are subject to the jurisdiction to which their parents are subject. Making an exception for legal residents doesn't change the principle, as evidenced by the children of foreign ambassadors and servicemen.
4. Yes, Cuba claims Ted Cruz as a citizen and would imprison him if he went back. But he's the child of an American parent so he's a U.S. citizen from birth under the laws of the country in which he is domiciled.
5. I am pleased to learn that Australia takes citizenship more seriously than we do.
6. It isn't hard, and no one thought it was hard until about a century after the amendment was ratified.
I know Kim was a legal resident. That is my point. Notwithstanding that he or at least his parents had allegiances to another country.
I am aware citizenship by descent isn’t at issue. I am making the point that you would no doubt regard a child born to American citizens in another country would have allegiances to the US. It’s the same point as above from an American point of view.
Allegiance may not be a feeling but your point was that the term ‘subject to the jurisdiction’ was intended to be exclusive which it never will be for any legal immigrant. They always have allegiances to at least one other country and are subject to deportation from the US. Which citizens are not. So, they’re never exclusively allegiant to the US.
Ted Cruz was born in Canada and Canada regarded him as a citizen until he formally renounced. My broader point is many people are simply born with multiple allegiances.
Australia does but not having a Bill of rights they can just change the law as it suits them.
You’ve not really answered my last point. It’d have been a simple matter to say what you meant. Truth is all New World countries grant citizenship at birth. Except Australia! Which changed its laws (see above).
1. You are correct that the text of the 14th Amendment does not require the Supreme Court to have decided as they did in Wong Kim Ark, and frankly, they went beyond both the Constitution and the statute. But I don't mind the children of legal residents becoming citizens.
2. I do not "regard" children of one or more U.S. citizens to be anything. As a matter of law they are U.S. citizens regardless of where they are born. Which is exactly the point with regard to the children of ambassadors, foreign servicemen, and illegal aliens: they are foreign citizens, and the location of their birth does not change that. Note that only the latter of those three categories is controversial, but for the latter to be citizens the former would have to be also.
3. Ted Cruz was the child of an American mother. What Canada (or Cuba) thinks is irrelevant to U.S. law.
4. Australia has a parliamentary system, which I oppose as an American.
5. I have said what I meant at now roughly 3,000 words length. But sure: "subject to the jurisdiction thereof" means exactly the same thing for ambassadors, foreign servicement, and illegal aliens. This was never controversial until the Johnson Administration, which is precisely why Indians had to be granted citizenship by statute in the 1920s: they were "subject to the jurisdiction" of their tribes, viewed under the law as sovereign nations separate from the United States, despite being born within the territorial boundaries of the United States. It is perfectly clear how the text was understood for the entire first century after its ratification.
But your argument rests on a concept of allegiance which you read into the amendment and applies equally to legal and illegal immigrants. Just because you’re born in a country to a legal immigrant does not make you primarily allegiant to that country. Hence the Ted Cruz example.
The argument therefore falls apart. If it means exclusively or even primarily allegiant then virtually no immigrants’ child would a citizen. This turns the amendment into a jus sanguinis law which it surely isn’t. Or it would say so. Particularly given how odd that would be for a new world country (Countries are as you know generally either jus soli or jus sanguinis).
No, YOUR argument rests on allegiance, and a very odd idea that allegiance is a feeling rather than a legal condition. MY argument rests on the words "and subject to the jurisdiction thereof" and the laws that came as a result of it, which plainly state that the children of ambassadors, though born here, are not citizens, and that (prior to Congressional action half a century after ratification) neither were Indians who had never lived anywhere but here.
You are putting words in my mouth that I have expressly repudiated again and again. You are writing a straw man to which I am opposed. Your statement is wrong. Can I say this any more clearly?
Rod, your post mentions allegiance about a dozen times. Your whole argument is that citizenship should be based on allegiance. You note that “Nations throughout history have understood that citizenship should be based on allegiance, not geography.” This isn’t even true to be clear: pretty much all countries in the new world base citizenship on just soli. Europe doesn’t because they are nation states.
So, yes, your argument rests on the concept of allegiance entirely. The word is in your post over and over. I’ve not put it in your mouth.
I am also not saying it’s about feelings. I’ve not even used the word. I’ve made the point that as a legal matter any immigrant and their children has other allegiances namely to the country they are citizen of. Nothing to do with feelings. This is just a matter of law. I’ve shown this is true for immigrants in America and Americans abroad.
And this defeats the argument. You need a concept other than allegiance to read legal immigrants into the amendment. And if you don’t, then you’ve got a jus sanguinis system. I doubt that was the intent.
You are misstating my argument, but never mind that: the bigger point is that you are misstating the legal definition of the word "allegiance". You are trying to make it a feeling or a sentiment. In law, it means and has always meant legal obligation. No illegal alien has any legal obligation to this country, and indeed, their first act upon arrival is to commit a crime. So your argument as you state it falls flat.
And it still misstates my argument. You are going out of your way to avoid my actual argument because you know it cuts against your own.
There is no legal definition of allegiance. I’ve not misstated your position: you base your argument on allegiance. It’s right there in your post. Repeatedly. I’ve not based my argument on illegal immigrants but on legal. Again, to summarize, a legal immigrant has, as a legal matter, duties and loyalties to another country. This is not a matter of sentiment. Those are legal points. So no legal immigrant has exclusive or primary allegiance - however defined - to the US. Since your argument bases their child’s claim to citizenship on their exclusive or primary allegiance to the US, it falls apart because that will never be the case. This turns your position into reading the 14th as a jus sanguinis law. That it is not. Your basic problem is you want the 14th to be a jus sanguinis law which is implausible. So you read into the jurisdiction requirement a concept of allegiance. Which no country has. It’s too vague. And we see it simply doesn’t work in the case of legal immigrants. So you’re stuck.
I was *really* hoping you would convince me, because I don't want fixing this to depend on a new Constitutional Amendment. But I'm afraid you haven't.
The analysis of a trespasser and home ownership is certainly inarguable -- for trespassing and home ownership. But an analogy is all that it is, and that isn't useful unless the analogy is manifest. If the Constitution said explicitly that the trespasser's child *was* entitled to equity in your home, all the intuition in the world would not undo that.
A better attempt is the fine reading of “subject to the jurisdiction” of the U.S., and in particular to the question of whether illegal immigrants "owed allegiance to foreign nations". But there are three obvious objections to this approach.
First, neglecting the question of allegiance, in what sense are illegals *not* subject to the jurisdiction of the U.S.? If they commit a crime, can they not be arrested and jailed? Can they claim diplomatic immunity?
Second, how would we tell whether they owe allegiance to their former country or not? The very fact that they are willing to *leave* that former country and take the risk of entering the U.S. illegally suggests that *they* do not feel any allegiance to their former country. And think about the countries we are talking about. It's really hard for me to try and shame them: "Oh, no, not so fast, you owe allegiance to Guatemala (or Honduras, or Venezuela). Look at all your country has done for you!"
Finally, we are not talking about the illegal immigrant in the first place, but their child, who has never set foot on the soil of *any* foreign nation. I find it very hard to imagine they have *allegiance* to a foreign nation.
The rest of your piece is a long and well-written discussion of how the current interpretation of the Constitution has been a disaster for the U.S. and will be even more of one as long as the problem continues. I am in complete agreement about this. And I also agree, of course, that the original aim of the Fourteenth Amendment was to give full citizenship to former slaves. If it had only been written that way explicitly, we would not be in this situation now. But it wasn't, and too-clever parsing of the language they did use is the tactics of progressives.
I hope a more solid argument is still possible, but if someone with the perspicacity of John Eastman or yourself has not come up with it, my hope is fading.
In what sense are the children of ambassadors not "subject to the jurisdiction" of the United States?
In what sense are the Indian tribes not "subject to the jurisdiction" of the United States prior to their being naturalized by statute in the 1920s?
As you your objections:
1. Illegal aliens are citizens of a foreign country and have no right to be present in the United States.
2. We can tell they owe allegiance to another foreign country by whether they are citizens of that country, as determined by who their parents are. This is not complicated, and it's the law of nearly every country on the planet.
3. The child of an illegal alien, like the child of a U.S. citizen, inherits the citizenship rights and duties of their parents. If that child wishes to renounce his foreign citizenship later and apply for U.S. citizenship, fine. But he was not born a citizen of this country any more than the child of the ambassador to the United States from his country, though born at the Mayo Clinic, was.
And of course, you're leaving out a pretty key point. All of this was understood to be the meaning of the 14th Amendment for the first century after its ratification. You either believe in original intent or you don't.
Rod, I’m not a lawyer or perhaps I would be better able to grasp your point. To this layman it looks like there is precious little justification for what you say was “understood to be the meaning of the 14th Amendment for the first century after its ratification”.
Slaughterhouse doesn’t seem to be about citizenship at all, let alone birthright citizenship.
Elk seems more germane, but its force is muddied by the fact that it deals with a Native American, whose legal status was at the time unusual, a nation within the territory of the U.S. whose sovereignty was explicitly guaranteed.
And Wong, despite your certainty, seems to me ambiguous. Yes, his parents were legal immigrants. But unless I’m way off base, at that time there was no concept of an *illegal* immigrant, no distinction between legal and illegal. So what grounds are there for saying that his parents were like green card holders? (It’s worth noting them at the majority in Wong, which affirmed his citizenship, nevertheless also affirmed that his parents were subjects of the Emperor of China. It was the dissent that raised the objection that "the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.") And in any case the court that decided Wong seemed to be more focused on whether the Chinese Exclusion Act could retroactively invalidate his citizenship.
But I’m certainly not a lawyer. Help me understand, please! As I said, I really do want to believe what you are saying.
Excellent points. I have read Wong but it was some time ago. Good reminder about some of the background. The dissent’s complaint goes some way to note the impact of the ruling which doesn’t favor Rod’s interpretation. It clearly was read at the time as applying to anyone just passing through. The Court might find a way to exclude children of persons not in the country legally but they’ll need a better argument than the ‘exclusive and complete allegiance’ argument that Rod offers.
Well, of course the Court can base its decision on any argument it wants to, and on occasion in the past has done so on some really shaky arguments. The only recourse is for a later Court to undo it, as this one did with Dobbs, but Courts are naturally and appropriately reluctant to do that. Still, I’d like to see a decision in favor of Rod’s position, and I hope they *can* come up with a better argument.
The problem here is that it is in fact a political question. There is no reason Congress shouldn’t have the power to make these determinations. But given the nature of the Bill of Rights that is very hard to do, so folks end up twisting themselves into very odd positions to get their desired result, of which Rod’s is an example, whereby he turns the amendment into a jus sanguinis law when it’s clearly jus soli. Be interesting to see what the Court says.
This passage in your post illustrates well the flaw in your reasoning:
"The Court reaffirmed this position in Elk v. Wilkins (1884), where it held that being “subject to the jurisdiction” of the United States meant more than mere territorial presence. It required one to be fully and exclusively subject to U.S. political authority, owing “direct and immediate allegiance.” The ruling made clear that jurisdiction, in the constitutional sense, is not a vague or partial obligation but a complete and exclusive bond between the individual and the nation.”
No non-citizen immigrant, legal or otherwise, can satisfy the requirement that jurisdiction means ‘a complete an exclusive bond between the individual and the nation’. This is obvious. Even a legal permanent resident cannot offer this. And their child cannot. They do not have exclusive and complete bond with the United States, pretty much however you define that. They will have stronger bonds with their own country, not for sentimental reasons, but because they are citizens of that country and not the US. They can be deported from the US but not from their own country. Their visa or residency status is subject to review, time, and revocation. Any number of hypotheticals demonstrate the point: a green card holder from France who has lived in the US for say six years who has a child in the US is not going to have ‘exclusive and complete bonds’ with the United States. He’s still got a French passport. His wife does. The child is entitled to it.
So your argument doesn’t work since it leads to the inevitable conclusion that the Amendment actually means “anyone born in the United States whose parent is a citizen is a citizen”. This is a jus sanguinis law, pretty much. No new world country had that in the 19th century and I know of only one that has it now. It also would’ve been easy to draft if that was the intent.
So what the jurisdiction clause means remains a matter of debate. It cannot mean what you want it to mean (see above and other replies). Maybe it means more than being subject to trespass laws, but you’ve not been able to cut through it with a sound position. Maybe there is some halfway house but it remains elusive as best I can tell.
Thanks. Unfortunately your argument would be a bit more compelling if the Fourteenth Amendment actually said, as you claim, 'subject to the complete jurisdiction thereof.' But it doesn’t include the word ‘complete’.
Your quotation from Madison is good but of course does not provide much illumination to what the framers of the Fourteenth meant seventy years later. That stupid phrase ‘subject to the jurisdiction of’ is the key. It’s there for a reason, and its clearly meant to restrict, so that not *every* child born in the US becomes a citizen. But I still can’t parse it as Rod and you do, to exclude children both of ambassadors and of illegal immigrants (a category that didn’t even exist at the time) but not of legal immigrants.
Maybe it means exactly what you say. I’d love to be shown contemporary speech that makes it clear that this was the intent. But unless I missed it, neither Rod nor you have done so.
Possible but some weaknesses. For one, Kim did have allegiances to another country, namely China. Similarly an American born abroad has allegiances to the US even if both his parents are lawful residents of some other country. Fundamentally whether your parents are in a country legally or legally isn’t dispositive of where your allegiances lie. Most obviously if your parents are merely lawful residents they certainly have allegiances to the country they come from as does their child.
Many countries of course assert that a person is their citizen even if that’s rather unwanted. Ted Cruz for example. In Australia politicians have had to resign when they discovered they were citizens of other countries unbeknownst to them.
Not to mention this would have been easily remedied in the language. If the intent of the amendment were as you say, why not simply write ‘born in the US to at least one parent lawfully resident”? It wouldn’t have been hard.
1. Wong Kim Ark's parents were legal residents, so they were in the same position as a modern green card holder would be today, radically distinguishable from an illegal alien.
2. Citizenship by descent from one or more American parents is not a subject of this case.
3. "Allegiance" is not a feeling, which is all the more true when you recall that we're talking about infants. For the purposes of the law, allegiance is a matter of citizenship and domicile. If a trespasser gives birth in your house, the child doesn't inherit from you. If an illegal alien gives birth in France, parent and child get deported. But the reason is that children inherit their parents' citizenship and are subject to the jurisdiction to which their parents are subject. Making an exception for legal residents doesn't change the principle, as evidenced by the children of foreign ambassadors and servicemen.
4. Yes, Cuba claims Ted Cruz as a citizen and would imprison him if he went back. But he's the child of an American parent so he's a U.S. citizen from birth under the laws of the country in which he is domiciled.
5. I am pleased to learn that Australia takes citizenship more seriously than we do.
6. It isn't hard, and no one thought it was hard until about a century after the amendment was ratified.
I know Kim was a legal resident. That is my point. Notwithstanding that he or at least his parents had allegiances to another country.
I am aware citizenship by descent isn’t at issue. I am making the point that you would no doubt regard a child born to American citizens in another country would have allegiances to the US. It’s the same point as above from an American point of view.
Allegiance may not be a feeling but your point was that the term ‘subject to the jurisdiction’ was intended to be exclusive which it never will be for any legal immigrant. They always have allegiances to at least one other country and are subject to deportation from the US. Which citizens are not. So, they’re never exclusively allegiant to the US.
Ted Cruz was born in Canada and Canada regarded him as a citizen until he formally renounced. My broader point is many people are simply born with multiple allegiances.
Australia does but not having a Bill of rights they can just change the law as it suits them.
You’ve not really answered my last point. It’d have been a simple matter to say what you meant. Truth is all New World countries grant citizenship at birth. Except Australia! Which changed its laws (see above).
I will be watching the case intently!
1. You are correct that the text of the 14th Amendment does not require the Supreme Court to have decided as they did in Wong Kim Ark, and frankly, they went beyond both the Constitution and the statute. But I don't mind the children of legal residents becoming citizens.
2. I do not "regard" children of one or more U.S. citizens to be anything. As a matter of law they are U.S. citizens regardless of where they are born. Which is exactly the point with regard to the children of ambassadors, foreign servicemen, and illegal aliens: they are foreign citizens, and the location of their birth does not change that. Note that only the latter of those three categories is controversial, but for the latter to be citizens the former would have to be also.
3. Ted Cruz was the child of an American mother. What Canada (or Cuba) thinks is irrelevant to U.S. law.
4. Australia has a parliamentary system, which I oppose as an American.
5. I have said what I meant at now roughly 3,000 words length. But sure: "subject to the jurisdiction thereof" means exactly the same thing for ambassadors, foreign servicement, and illegal aliens. This was never controversial until the Johnson Administration, which is precisely why Indians had to be granted citizenship by statute in the 1920s: they were "subject to the jurisdiction" of their tribes, viewed under the law as sovereign nations separate from the United States, despite being born within the territorial boundaries of the United States. It is perfectly clear how the text was understood for the entire first century after its ratification.
But your argument rests on a concept of allegiance which you read into the amendment and applies equally to legal and illegal immigrants. Just because you’re born in a country to a legal immigrant does not make you primarily allegiant to that country. Hence the Ted Cruz example.
The argument therefore falls apart. If it means exclusively or even primarily allegiant then virtually no immigrants’ child would a citizen. This turns the amendment into a jus sanguinis law which it surely isn’t. Or it would say so. Particularly given how odd that would be for a new world country (Countries are as you know generally either jus soli or jus sanguinis).
No, YOUR argument rests on allegiance, and a very odd idea that allegiance is a feeling rather than a legal condition. MY argument rests on the words "and subject to the jurisdiction thereof" and the laws that came as a result of it, which plainly state that the children of ambassadors, though born here, are not citizens, and that (prior to Congressional action half a century after ratification) neither were Indians who had never lived anywhere but here.
You are putting words in my mouth that I have expressly repudiated again and again. You are writing a straw man to which I am opposed. Your statement is wrong. Can I say this any more clearly?
Rod, your post mentions allegiance about a dozen times. Your whole argument is that citizenship should be based on allegiance. You note that “Nations throughout history have understood that citizenship should be based on allegiance, not geography.” This isn’t even true to be clear: pretty much all countries in the new world base citizenship on just soli. Europe doesn’t because they are nation states.
So, yes, your argument rests on the concept of allegiance entirely. The word is in your post over and over. I’ve not put it in your mouth.
I am also not saying it’s about feelings. I’ve not even used the word. I’ve made the point that as a legal matter any immigrant and their children has other allegiances namely to the country they are citizen of. Nothing to do with feelings. This is just a matter of law. I’ve shown this is true for immigrants in America and Americans abroad.
And this defeats the argument. You need a concept other than allegiance to read legal immigrants into the amendment. And if you don’t, then you’ve got a jus sanguinis system. I doubt that was the intent.
You really are very clear about this Rod:
The United States, like any sovereign nation, has the right to define its citizenry based on allegiance, not geographic happenstance.
You are misstating my argument, but never mind that: the bigger point is that you are misstating the legal definition of the word "allegiance". You are trying to make it a feeling or a sentiment. In law, it means and has always meant legal obligation. No illegal alien has any legal obligation to this country, and indeed, their first act upon arrival is to commit a crime. So your argument as you state it falls flat.
And it still misstates my argument. You are going out of your way to avoid my actual argument because you know it cuts against your own.
There is no legal definition of allegiance. I’ve not misstated your position: you base your argument on allegiance. It’s right there in your post. Repeatedly. I’ve not based my argument on illegal immigrants but on legal. Again, to summarize, a legal immigrant has, as a legal matter, duties and loyalties to another country. This is not a matter of sentiment. Those are legal points. So no legal immigrant has exclusive or primary allegiance - however defined - to the US. Since your argument bases their child’s claim to citizenship on their exclusive or primary allegiance to the US, it falls apart because that will never be the case. This turns your position into reading the 14th as a jus sanguinis law. That it is not. Your basic problem is you want the 14th to be a jus sanguinis law which is implausible. So you read into the jurisdiction requirement a concept of allegiance. Which no country has. It’s too vague. And we see it simply doesn’t work in the case of legal immigrants. So you’re stuck.
Hi Rod,
I was *really* hoping you would convince me, because I don't want fixing this to depend on a new Constitutional Amendment. But I'm afraid you haven't.
The analysis of a trespasser and home ownership is certainly inarguable -- for trespassing and home ownership. But an analogy is all that it is, and that isn't useful unless the analogy is manifest. If the Constitution said explicitly that the trespasser's child *was* entitled to equity in your home, all the intuition in the world would not undo that.
A better attempt is the fine reading of “subject to the jurisdiction” of the U.S., and in particular to the question of whether illegal immigrants "owed allegiance to foreign nations". But there are three obvious objections to this approach.
First, neglecting the question of allegiance, in what sense are illegals *not* subject to the jurisdiction of the U.S.? If they commit a crime, can they not be arrested and jailed? Can they claim diplomatic immunity?
Second, how would we tell whether they owe allegiance to their former country or not? The very fact that they are willing to *leave* that former country and take the risk of entering the U.S. illegally suggests that *they* do not feel any allegiance to their former country. And think about the countries we are talking about. It's really hard for me to try and shame them: "Oh, no, not so fast, you owe allegiance to Guatemala (or Honduras, or Venezuela). Look at all your country has done for you!"
Finally, we are not talking about the illegal immigrant in the first place, but their child, who has never set foot on the soil of *any* foreign nation. I find it very hard to imagine they have *allegiance* to a foreign nation.
The rest of your piece is a long and well-written discussion of how the current interpretation of the Constitution has been a disaster for the U.S. and will be even more of one as long as the problem continues. I am in complete agreement about this. And I also agree, of course, that the original aim of the Fourteenth Amendment was to give full citizenship to former slaves. If it had only been written that way explicitly, we would not be in this situation now. But it wasn't, and too-clever parsing of the language they did use is the tactics of progressives.
I hope a more solid argument is still possible, but if someone with the perspicacity of John Eastman or yourself has not come up with it, my hope is fading.
In what sense are the children of ambassadors not "subject to the jurisdiction" of the United States?
In what sense are the Indian tribes not "subject to the jurisdiction" of the United States prior to their being naturalized by statute in the 1920s?
As you your objections:
1. Illegal aliens are citizens of a foreign country and have no right to be present in the United States.
2. We can tell they owe allegiance to another foreign country by whether they are citizens of that country, as determined by who their parents are. This is not complicated, and it's the law of nearly every country on the planet.
3. The child of an illegal alien, like the child of a U.S. citizen, inherits the citizenship rights and duties of their parents. If that child wishes to renounce his foreign citizenship later and apply for U.S. citizenship, fine. But he was not born a citizen of this country any more than the child of the ambassador to the United States from his country, though born at the Mayo Clinic, was.
And of course, you're leaving out a pretty key point. All of this was understood to be the meaning of the 14th Amendment for the first century after its ratification. You either believe in original intent or you don't.
Point 2 and 3 are just as true for legal immigrants. This is why the argument doesn’t work.
Rod, I’m not a lawyer or perhaps I would be better able to grasp your point. To this layman it looks like there is precious little justification for what you say was “understood to be the meaning of the 14th Amendment for the first century after its ratification”.
Slaughterhouse doesn’t seem to be about citizenship at all, let alone birthright citizenship.
Elk seems more germane, but its force is muddied by the fact that it deals with a Native American, whose legal status was at the time unusual, a nation within the territory of the U.S. whose sovereignty was explicitly guaranteed.
And Wong, despite your certainty, seems to me ambiguous. Yes, his parents were legal immigrants. But unless I’m way off base, at that time there was no concept of an *illegal* immigrant, no distinction between legal and illegal. So what grounds are there for saying that his parents were like green card holders? (It’s worth noting them at the majority in Wong, which affirmed his citizenship, nevertheless also affirmed that his parents were subjects of the Emperor of China. It was the dissent that raised the objection that "the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.") And in any case the court that decided Wong seemed to be more focused on whether the Chinese Exclusion Act could retroactively invalidate his citizenship.
But I’m certainly not a lawyer. Help me understand, please! As I said, I really do want to believe what you are saying.
Excellent points. I have read Wong but it was some time ago. Good reminder about some of the background. The dissent’s complaint goes some way to note the impact of the ruling which doesn’t favor Rod’s interpretation. It clearly was read at the time as applying to anyone just passing through. The Court might find a way to exclude children of persons not in the country legally but they’ll need a better argument than the ‘exclusive and complete allegiance’ argument that Rod offers.
Well, of course the Court can base its decision on any argument it wants to, and on occasion in the past has done so on some really shaky arguments. The only recourse is for a later Court to undo it, as this one did with Dobbs, but Courts are naturally and appropriately reluctant to do that. Still, I’d like to see a decision in favor of Rod’s position, and I hope they *can* come up with a better argument.
The problem here is that it is in fact a political question. There is no reason Congress shouldn’t have the power to make these determinations. But given the nature of the Bill of Rights that is very hard to do, so folks end up twisting themselves into very odd positions to get their desired result, of which Rod’s is an example, whereby he turns the amendment into a jus sanguinis law when it’s clearly jus soli. Be interesting to see what the Court says.
This passage in your post illustrates well the flaw in your reasoning:
"The Court reaffirmed this position in Elk v. Wilkins (1884), where it held that being “subject to the jurisdiction” of the United States meant more than mere territorial presence. It required one to be fully and exclusively subject to U.S. political authority, owing “direct and immediate allegiance.” The ruling made clear that jurisdiction, in the constitutional sense, is not a vague or partial obligation but a complete and exclusive bond between the individual and the nation.”
No non-citizen immigrant, legal or otherwise, can satisfy the requirement that jurisdiction means ‘a complete an exclusive bond between the individual and the nation’. This is obvious. Even a legal permanent resident cannot offer this. And their child cannot. They do not have exclusive and complete bond with the United States, pretty much however you define that. They will have stronger bonds with their own country, not for sentimental reasons, but because they are citizens of that country and not the US. They can be deported from the US but not from their own country. Their visa or residency status is subject to review, time, and revocation. Any number of hypotheticals demonstrate the point: a green card holder from France who has lived in the US for say six years who has a child in the US is not going to have ‘exclusive and complete bonds’ with the United States. He’s still got a French passport. His wife does. The child is entitled to it.
So your argument doesn’t work since it leads to the inevitable conclusion that the Amendment actually means “anyone born in the United States whose parent is a citizen is a citizen”. This is a jus sanguinis law, pretty much. No new world country had that in the 19th century and I know of only one that has it now. It also would’ve been easy to draft if that was the intent.
So what the jurisdiction clause means remains a matter of debate. It cannot mean what you want it to mean (see above and other replies). Maybe it means more than being subject to trespass laws, but you’ve not been able to cut through it with a sound position. Maybe there is some halfway house but it remains elusive as best I can tell.
We shall see what the Court makes of it.
A few thoughts on birthright citizenship
https://torrancestephensphd.substack.com/p/about-this-birtright-citizenship
I’d read that if it weren’t paywalled.
My fault. Open to public now. I was lunchin
Thanks. Unfortunately your argument would be a bit more compelling if the Fourteenth Amendment actually said, as you claim, 'subject to the complete jurisdiction thereof.' But it doesn’t include the word ‘complete’.
Your quotation from Madison is good but of course does not provide much illumination to what the framers of the Fourteenth meant seventy years later. That stupid phrase ‘subject to the jurisdiction of’ is the key. It’s there for a reason, and its clearly meant to restrict, so that not *every* child born in the US becomes a citizen. But I still can’t parse it as Rod and you do, to exclude children both of ambassadors and of illegal immigrants (a category that didn’t even exist at the time) but not of legal immigrants.
Maybe it means exactly what you say. I’d love to be shown contemporary speech that makes it clear that this was the intent. But unless I missed it, neither Rod nor you have done so.