The Original Meaning of "Subject to the Jurisdiction" of the United States

It meant under the authority of U.S. law, thus excluding foreign diplomats, foreign armies and (at the time) Native American tribes.

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In this post I'll consider the original meaning of the second requirement of the Constitution's citizenship clause: that a person be born "subject to the jurisdiction" of the United States. (More detailed discussion and citations can be found in Part II.B of my forthcoming article.)

As noted in my introductory post, writers such as John Eastman and Michael Anton claim the original meaning of "subject to the jurisdiction" excludes from citizenship the U.S.-born children of temporary visitors and undocumented migrants (and, perhaps, of all alien parents). I think they're clearly mistaken.

I'll start with a methodological point. Much past debate on this subject has focused on parsing the clause's drafting debates or speculating about the drafters' intent. These matters may be worth considering, but they shouldn't be the starting point. Instead, we should start with the text and with the contemporaneous meaning of the key phrase.

The citizenship clause's text begins, as discussed in my prior post, with the requirement of birth "in the United States." It then adds the further requirement of birth "subject to the jurisdiction" of the United States. So our inquiry is framed as: in the nineteenth century language and context in which the clause was written, who was in the United States yet not subject to its jurisdiction?

As with the first part of the clause, Chief Justice Marshall provides a good beginning. In Schooner Exchange v. McFaddon (1812), writing for the Court, Marshall discussed "a nation's jurisdiction," which he equated with national sovereign authority. Generally, Marshall said, a nation had jurisdiction over all people and things within its territory. But there were three exceptions, which he listed: foreign sovereigns themselves, foreign ambassadors and foreign armies. These exception apart, though, Marshall emphasized that aliens within sovereign territory were otherwise "amenable to the jurisdiction" of the United States (meaning governed by U.S. law).

Henry Wheaton, the leading nineteenth-century American writer on international law, described national jurisdiction in a similar way, using the phrase "subject to the jurisdiction." Ordinarily, Wheaton wrote in Elements of International Law (1836), a nation had "jurisdiction," meaning "sovereign power of municipal legislation," within its territory. But, he continued, foreign ambassadors and their households had diplomatic immunity under international law and so were "excluded from the local jurisdiction." Immunity thus was an exception from the territorial jurisdiction to which they, as aliens within sovereign territory, would otherwise be subject.

There was another category of people described in the nineteenth century as in the United States but not subject to U.S. jurisdiction: tribal Native Americans. This sounds odd to modern ears because the U.S. claimed ultimate authority over the tribes. But the U.S. commonly (at the time) entered into treaties guaranteeing tribes authority over internal matters, including governance of tribal members. Some treaties expressly referred to tribal "jurisdiction." And key nineteenth-century writers such as James Kent described the situation (in Goodell v. Jackson, 1823): "Though born within our territorial limits, the Indians are considered as born under the jurisdiction of their tribes."

The nineteenth-century idea of national jurisdiction was interrelated with citizenship law. Prior to the Fourteenth Amendment, citizenship law was mostly common law, and U.S. common law tracked the British principle of jus soli (birth within sovereign territory). A longstanding exception to jus soli citizenship was the children of diplomatic households, who were not U.S. citizens although born in U.S. territory. A similar exception existed (in theory) for children of foreign armies, again arising from their exclusion from U.S. jurisdiction; Justice Story, for example, directly linked these ideas in describing citizenship law in Inglis v. Trustees of Sailor's Snug Harbor (1830). And likewise, Native Americans were not treated as citizens if they were born within tribal society because, as Kent explained in the passage quoted above, they were under the jurisdiction of the tribes, not the jurisdiction of the United States.

Also consistent with the idea of jurisdiction, the U.S.-born children of aliens (other than diplomats and armies) were considered U.S. citizens. In McCreery's Lessee v. Somerville (1824), for example, the Supreme Court (per Justice Story) treated as uncontroversial the U.S. citizenship of the U.S.-born child of Irish alien parents. In Lynch v. Clarke (1844), a New York court directly held that U.S.-born children of alien temporary visitors were U.S. citizens.

Thus when the Fourteenth Amendment's drafters picked the phrase "subject to the jurisdiction," it had an established meaning that was already closely connected to citizenship. The first part of the citizenship clause ("born in the United States") adopted the territorial principle of jus soli. The second part embraced the longstanding exclusions from the jus soli principle: people in U.S. territory but nonetheless not under U.S. sovereign authority, namely diplomats, foreign armies and tribal Native Americans, who had not traditionally been born citizens.

The Senate debates, where the citizenship clause was developed, bear this out. Initially, the proposed Amendment guaranteed rights to citizens without defining citizens. Senator Wade pointed this out and suggested guaranteeing rights to all persons born in the United States. Senator Fessenden objected that some U.S.-born people were not citizens under existing law (which Wade acknowledged, mentioning ambassadors). Senator Howard then proposed the language that became the citizenship clause, describing the "subject to the jurisdiction" language as excluding children of ambassadors.

Senators next debated whether Howard's language continued the exclusion of tribal Native Americans from citizenship (which they favored). Howard said that it did, adopting the prior explanation that U.S. laws didn't extend to the tribes' internal affairs. A revision to expressly exclude tribal members was defeated as unnecessary.

Finally, the Senators considered the citizenship of U.S.-born children of aliens. Senator Cowan objected (in overtly racial terms) that the proposal would make citizens of U.S.-born children of Chinese immigrants on the West Coast. California Senator Conness (himself an Irish immigrant) agreed it would have this effect, but enthusiastically endorsed it. No Senator disagreed with the Cowan/Conness interpretation, including Howard (who wrote the clause) and Senator Trumbull (who originally introduced the proposed Amendment). Indeed, in an earlier exchange with Cowan, Trumbull said that U.S.-born children of Chinese immigrants (like all U.S.-born children of immigrants) should be considered citizens. And the Senate then adopted Howard's language without further revision.

Thus, as with the first part of the clause, the drafting history confirms the pre-drafting ordinary meaning of the relevant language. "Subject to the jurisdiction" of the U.S. meant people under U.S. sovereign authority. That included everyone within U.S. territory, excluding only foreign diplomats, foreign armies and native tribes. (As shown by the Court's decision in Fleming v. Page, discussed in my last post, it was possible to be subject to U.S. jurisdiction outside U.S. territory; anyone in this category would be excluded from citizenship by the first part of the clause).

In my next post, I'll discuss why this original meaning includes the U.S.-born children of undocumented migrants, and consider some leading counterarguments.

NEXT: Today in Supreme Court History: October 28, 1787

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  1. I think you need to go into more detail about the exception for foreign armies.

    Are we talking invading foreign armies, present against the will of the US government? A class that is at least analogous to illegal aliens, even if some people quibble about using the term “invasion” to describe people not wearing uniforms.

    Or are we talking foreign troops present with the consent of the US government, for joint training or security at diplomatic compounds, which would be analogous to diplomatic personnel?

    1. No, he really doesn’t need to go into detail about that. It is truly sad how people demand fidelity to the Constitution, except when they realize that the language inconveniences them.

      “I mean, if two British people in the sixties had a kid here, that could wouldn’t be covered, because that was British Invasion … AMIRITE?”

      1. He can’t just drop that reference to foreign troops, and then never clarify it. As I point out, there are two different interpretations of that, which have different implications in terms of the current debate.

        And that “subject to the jurisdiction thereof” language is actually in the Constitution, even if it might inconvenience you to have it gain any teeth.

        1. Why not? Only an idiot thinks that undocumented immigrants are foreign troops.

          1. I’m not saying they ARE foreign troops. I’m saying that the same reasoning that applies to foreign troops might apply to illegal aliens, depending on what the reasoning is behind foreign troops being a traditional exception.

            1. That’s a cop-out. For the same reasoning to apply, they have to at least be somewhat analogous. Which they aren’t. You arrest an invading soldier, he shoots at you. You arrest an undocumented immigrant, he goes into custody.

              1. What’s analogous is that they’re both present in the country against the country’s will.

                1. Which has nothing to do with the text. Subject to jurisdiction does not say anything about the country giving permission.

                  This is why your position is either racist or blindingly stupid. You are bringing up something irrelevant and in doing so, comparing ordinary families to an invading army. You have to irrationally hate these people to go there, and you do

                  1. Yeah, the text doesn’t mention foreign troops OR diplomats. It just says “subject to the jurisdiction thereof”, and we’re discussing what THAT means.

                    1. If a baby of a diplomat gets an American birth certificate then how would we even know they were the baby of a diplomat?? So an easy example of Pittsburgh Steeler Villanueva the son of a Spanish naval officer (and Spanish wife) in America on a NATO assignment…his son appears to be an American citizen from birth.

                    2. We actually know what it means and why it applies to diplomats.

                    3. What about foreign military officers stationed in America??

                    4. If a case comes up involving them, we can debate that issue.

                  2. ” This is why your position is either racist or blindingly stupid. ”

                    “Or” isn’t strong enough to support the reality in this context.

        2. “As I point out, there are two different interpretations of that, which have different implications in terms of the current debate.”

          I don’t know what “current debate” is, but neither of the different interpretations relate to illegal immigrants.

          Your stretching on this is stupid. Why even limit it to the “two interpretations”? Why not just add a third, that is “illegal immigrants from Mexico or El Salvador”? What is it you think originalist research is going to reveal? That some ratifier didn’t like Jamaicans?

      2. If two British people in their sixties had a kid here, (Aside from that being a bit old for a woman to have a kid…) and they were present legally, I think they’re covered under any reasonable reading of the clause. The real controversy is over the status of children born to people present in the country contrary to our laws.

        Would it have been written differently, to exclude tourists, if international travel hadn’t been so expensive at the time that “tourism” wasn’t really much of a thing? I think it might have, but obviously it wasn’t, so there you are: Tourists can take advantage of it, and have the Constitution on their side.

        The question is whether illegal immigrants really have the Constitution in their corner.

        1. “Would it have been written differently, to exclude tourists, if international travel hadn’t been so expensive at the time that “tourism” wasn’t really much of a thing?”

          Welcome to the downside of originalism, where the left has been making this same argument about the second amendment for decades.

          1. The difference is that, as an originalist, I don’t think the “they would have written it differently if only they had known” argument actually has any legal force. They didn’t write it differently. And that settles the matter.

            The left speculates that the Constitution would have been written differently if only the people who’d written it had agreed with them, and then proposes on that basis to interpret it as ‘meaning’ what they should have written, instead of what they did write.

            1. It’s so easy to argue against a proposition once you have misstated it to suit your own purpose.

            2. Originalism is BS, but the original public understanding of this was if you were born here, with certain narrow exceptions having nothing to do with undocumented immigrants, you’re a citizen.

              You are NOT an originalist, Brett. You’re just like all the rest- originalist until it interferes with something you really want.

              1. Fixed it for you: the original public understanding of this was if you were born here, with certain narrow exceptions, you’re a citizen.

                The fact is that those narrow exceptions are not spelled out in the 14th amendment. Brett’s point is that since foreign armies are generally viewed as fitting within the exception then it is arguable that other persons here in open/knowing defiance of our laws might also fit the exception.

                There can be whole lot of ground between an undocumented immigrant and someone present in defiance of a nations’ laws. If there are no laws requiring a visa to enter and reside then being undocumented might be well within a nation’s laws. But when a nation makes laws requiring a visa or other authorization to enter, work, and reside then characterizing a person who resides illegally as merely undocumented is a form of paltering -use of a partial truth designed to deceive.

                1. Thanks for repeating, perhaps more clearly, what I’ve been saying.

        2. “The question is whether illegal immigrants really have the Constitution in their corner.”

          How do they not?

        3. “If two British people in their sixties had a kid here, (Aside from that being a bit old for a woman to have a kid…) and they were present legally…”

          So you think two British people who overstayed their VISA by one day would be akin to foreign troops invading…?

          1. In the sense of being present in the country against our legally expressed will, sure.

      3. Brett’s argument is worse than that. He thinks any American born children of the Beatles and other British rock bands in the 1960’s are not “subject to jurisdiction”- after all, they called it the British Invasion.

    2. I understand that illegal immigrants have been characterized as an invading army, and this characterization makes it important to understand what the invading army exception to the traditional understanding of “subject to its jurisdiction” means.

      I personally think that, while the characterization may be relevant to many matters at the discretion of the President and/or Congress – including the basic question of what immigrants to legally allow or exclude, and even the use of force, directed at the other side of the border, to exclude them – I don’t think it applies for citizenship clause purposes. Present immigrants, however undesired, are not armed and do not seek to subject the United States or any part of it to the rule of a foreign power. The fact that they would bring foreign languages and customs here, however disruptive it may be thought to be, does not make them an army.

      On the other hand, if any of the 9/11 terrorists had children while in the United States, it could be argued that they were here as an invading army and the children aren’t citizens. They were armed, trained as a fighting force, were sent by a foreign power to attack US territory in an essentially military and war-like way, and performed that mission. I think these facts are likely sufficient to make them an invading army for 14th Amendment purposes, even though they entered the United States legally at the time, disguised as civilians.

      1. The question, really, is this: Are foreign armies excluded from “subject to the jurisdiction thereof” because they are agents of a foreign power, similar to diplomats? Or are they excluded because they are here contrary to the will of the government, refusing to be subject to that jurisdiction?

        The refusal to be subject to US jurisdiction doesn’t imply wearing a uniform or bearing arms, after all.

        1. Even under that tortured reasoning, a foreign army’s refusal involves violent resistance to the power of the US government, not waiting for jobs at Home Depot.

          Give up Brett. Your virulent racism against these people is leading you to say incredibly stupid stuff.

        2. Why does it matter? In either case, Ramsey argues they are not subject to the jurisdiction because US laws don’t generally apply to them. In the case of unauthorize aliens, even if they are viewed as invaders, US law generally applies to them.

        3. If you follow the Schooner Exchange link you’ll discover why Prof. Ramsey wrote that “foreign armies”, rather than the more limited “invading armies”, are not subject to the jurisdiction. Invading armies are immune to domestic civil law by action of the law of war, but invited foreign armies, says Chief Justice Marshall, are also immune because the sovereign implicitly cedes jurisdiction when extending the invitation.

          But the bigger picture is that through all these scenarios and exceptions “subject to the jurisdiction” really does mean having an obligation to obey the law, so if you want to use this clause to exclude illegal immigrants you need to show that they also enjoy some kind of immunity.

        4. The immigrants are not refusing to be subject to US jurisdiction. Rather, they actively seek to be subject to it.

          An illegal immigrant offered legal status and a path to citizenship would grab the offer.

          I doubt a Wehrmacht soldier in Poland in 1939 would have grabbed a similar offer from the Polish government.

          1. It’s kind of paradoxical: They only want to be subject to the part of it they want to be subject to: If they were willing to be fully subject to our laws, they’d leave.

            1. Many Americans don’t want to be fully subject to our speeding laws (which save thousands of lives and are thus a lot more important than our immigration laws), our tax laws, our drunk driving laws, etc. They are still subject to our jurisdiction.

        5. Foreign soldiers are excluded because they are agents of a foreign power, similar to foreign diplomats (whom the soldiers are often here to protect, compatible to the will of government)

          An invading army (particularly one established enough to be having children here) would be considered an occupying force and thus to have usurped the jurisdiction of the United States in favor of a foreign power

        6. Alternatively, it’s not because they are refusing to be subject to the jurisdiction, but because the jurisdiction of the United States is incapable of being exercised upon them.

          Someone who is breaking a law is still subject to that law – as is demonstrated when a law enforcement officer arrests them and punishes them.

          Someone who is not subject to a law, though, is someone who is beyond the capacity of law enforcement to arrest. Which would be true of a foreign army in occupation.

          For example, any child born to a Japanese soldier and his (Japanese) wife during the occupation of Attu and Kiska Islands in 1942-3 is not entitled to 14th Amendment citizenship. What could Alaska’s Territorial Police do about said Japanese soldier if they broke an American law?

          Indeed, one can make a fair case that any person born during the occupation does not have jus soli citizenship. If their parents were US citizens, they will have it by descent, so there’s no standing to take it to court.

    3. Brett, a bunch of poor people wanting jobs and a better life is not an invading army. That is a malicious lie.

    4. And while he’s at it, the press called certain 60’s pop bands and influence “the British Invasion”. Perhaps Brett should demand that their status be discussed as well. You know, for completeness, since they might also be analogous to a foreign army.

        1. An hour and a half after loki.
          Will this spin off a thread debating what “first” means?

          1. Loki didn’t mention the musical British Invasion.

            1. Was there a nonmusical British Invasion too in the 60s?

              1. He was kust talking about classifying British people as invaders.

                1. Dilan, I disagree. What you describe is not the original public meaning of loki’s comment.

                  1. Loki clearly got there first and best. To what other British Invasion would he have been referring?

    5. First, the analogy between immigrants and invading foreign armies is dumb. Other people have already elaborated on this point, so I won’t bother, but even with today’s particular political discourse I would hope that anyone drafting Constitutional text would be able to tell the difference between the two things.

      Second, though, Professor Ramsey cites the case that indicates that foreign armies aren’t subject to local jurisdiction. It’s really not that hard to go take a look-see. Here’s the relevant text, which does not actually address invading armies:

      “Where a sovereign allows the troops of a foreign prince to pass through his dominions, he waives his jurisdiction over the army to which the right of passage has been granted without any express declaration to that effect.”

      The general premise of the case is that the nation has absolute jurisdiction within its own territory, which supports with Professor Ramey’s general line of reasoning. The case of an actual invading army is actually where the assumption breaks down, because a successful invading army prevents a nation from exerting sovereignty in some fraction of its territory. As noted above, though, this has nothing to do with immigrants, legal or otherwise.

      1. I think with a true invading army the issue is that the army is generally subject to international law and the law of war, not domestic law. So that is why it isn’t considered the “jurisdiction of the United States” (e.g. A captured soldier is PoW and must be treated based on the Geneva Convention, they can’t be tried for murder and given the death penalty)

      2. I would answer the question more narrowly. The President might be legally able to characterize the immigration situation as an “invasion” for at least some purposes, as a policy matter, regardless of the way you or I might see it. But while they might perhaps be an “invasion,” at least arguably, they are definitely not an “army.”

    6. In Schooner Exchange, the foreign army has been granted a right of passage through a sovereign state’s territory. It is not an invading army. Without permission, a foreign army’s entry is considered a hostile act and the foreign army “acquires no privilege.” See Wheaton (1866 edition) §99. However, a distinction generally applies to foreign war ships entering such a state’s ports in times of peace. Id. § 100.

    7. Both.

      The latter as you note is probably not subject to US Criminal Jurisdiction under notions of diplomatic immunity.

      However the former is also not subject to US criminal jurisdiction under international law covering the rules of war. Prisoners of War can not be tried as criminals.

  2. News flash! A writer at Reason interprets the Constitution to maximize the number of immigrants not specifically granted permission by the American people.

    But again, he consistently avoids the actual argument by pointing out that the authors talked regularly about the effect on the children of immigrants. My understanding of federal law (caveat: I’m not a lawyer) is that the word immigrant implies a legal status, whereas the words “illegal alien” don’t. One of the reasons that the open borders crowd started referring to them as undocumented immigrants was to blur the line.

    1. News flash! A commenter at Reason assumes the Constitution’s grant of control over naturalization somehow extends to immigration without further elaboration, then complains when others don’t follow his off-trail lead.

      1. I am struggling to understand your objection:

        (a) The question here is purely one of naturalization/citizenship. The federal government’s power to regulate immigration is irrelevant to the citizenship status of people born in the US.
        (b) The debate is around the meaning of a Constitutional amendment. Even if the federal government had no power on the topic prior to the enactment of the 14th Amendment, the amendment itself makes the issue properly scoped to the federal government.

    2. Slaves didn’t have a legal status either, and yet nobody doubts the 14A was intended to make them citizens.

      At any rate even if undocumented immigrants have no legal staus, that doesn’t mean their children aren’t born with one.

    3. New Flash! The left now generally omits the “undocumented” or “illegal” qualifier when talking about anyone who moved here whether with permission or not.

    4. Ramsey did not call them immigrants. He called them migrants.

    5. There’s a conceptual difference between naturalization and immigration. The power to regulate immigration is inferred from a sovereign state’s power to control and protect its borders. This principle applied to the United States and each of the several states. However, Art I §9 provides: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” While this obviously applies to the importation of slaves, it also applies to all forms of migration. So it appears to grant Congress the power to regulate immigration by implication.

      1. Arguing things that the Supreme Court has rejected for decades may interest you, but it has nothing to do with actual law.

  3. Quickly reading the cases he cites:

    McReery: it is not clear from the case why the daughters are natural born citizens. It is possible that McReery emigrated to the US, and then returned to Ireland later. The case is mostly about whether they can inherit property.

    Lynch: The NY case is more convincing but isn’t a SCOTUS decision so isn’t precedent by my understanding.

    The discussion amongst the authors I’ll have to leave for those more versed in the topic, as I’ve seen arguments where the discussion was framed very differently. I don’t accuse anyone of picking and choosing their quotes, but don’t we all pretty much do that to support our opinions?

    1. Lower court cases certainly are precedents.

    2. FWIW, Professor Ramsey is not citing the cases for precedential value, just to establish the context in which the authors of the 14th Amendment would have understood the words they’re using.

      Perhaps just because he’s a law professor, he is leaning pretty heavily on legal cases to make that case. Having said that, for a term like “subject to the jurisdiction” it’s not clear where else you’d be looking (as opposed to “born in the United States” for which I’d imagine there would be tons of other sources to help establish an understanding of the phrase).

  4. Incidentally, use of terms like “undocumented migrants” is a real tell that you’re not approaching the topic in full honesty.

    Illegal immigrants are not people who’ve misplaced their wallets. Often they DO have documentation; Fraudulent documentation.

    The reason they lack legitimate documents is because they’re here in violation of the law, they’re not entitled to green cards or visas.

    It’s similar to referring to somebody squatting in a house as an “undocumented homeowner”, or a thief as an “undocumented owner”. It’s a euphemism adopted specifically to discourage any thought about the central point which distinguishes them from legal immigrants: That they’re here illegally.

    1. Brett, you took a racist dump all over the top of the thread. You have no standing to be lecturing the actual humane human beings in this thread what language to use.

      1. I said literally nothing at all about race. Does the word “racist” have any meaning to you beyond “I didn’t like it”?

        1. You compared human beings looking for work to a foreign invading army.

          You only have to be motivated by race to be a racist, you don’t have to mention it explicitly. In this instance you said something that requires a visceral hatred of undocumented immigrants to say. Yes, that’s racist.

          1. Unless I did so on the basis of their race, that’s not racist.

            Look, “racist” actually has a meaning, and it’s not, “Anything Dilan Esper finds objectionable”.

            1. You did. OK? The reason you hate these people is they have brown skin and speak Spanish. Why do I know that? Because non-racists don’t compare these migrant families to invading armies.

              1. I am literally MARRIED TO a woman with brown skin who speaks Spanish, or at least a language derived from it.

                I don’t hate these people, I wish them well, I just wish them well where they’re legally entitled to be, not here.

                The fact that you can’t conceive of anybody disagreeing with you for any reason but hatred and racism isn’t an argument. It’s a mental block you have, almost the exact opposite of an argument, something you assume because you LACK a rational argument!

                1. Some of Brett’s best friends are Black!

                  1. A classic Kafka trap. Any evidence you provide to demonstrate you’re not a racist is interpreted as proof that you’re a racist.

                    Of course, that renders the accusation unfalsifiable, and thus meaningless.

                    1. Any evidence you provide to demonstrate you’re not a racist is interpreted as proof that you’re a racist.

                      No. Some evidence just doesn’t prove much.

                      You can’t claim to be non-racist because you cheer for Black players on your favorite football team, for example, or are friendly with Black co-workers. Bigotry doesn’t have to extend to absolutely all members of the disliked group to be bigotry. Karl Lueger, the strongly antisemitic mayor of turn-of-the 20th Century Vienna had a number of Jewish friends. When questioned about this he famously answered, “wer ein jude ist, das bestimm ich.” “I decide who is a Jew.”

                    2. What bernard said.

                      The way you demonstrate you aren’t a racist, Brett, is by not advocating racist things, such as that families moving here for jobs and a better life are analogous to hostile armed forces invading the United States seeking to kill Americans.

                      The point is, the fact that you are so exercised at the idea that the children of undocumented immigrants are not punished and turned into second class people because of the alleged sins of their parents that you compare such people to invading armed forces shows that you are racist, because non-racist people aren’t exercised by this in that way.

                      And note, that’s different than opposing birthright citizenship as a matter of policy. You can argue the 14th Amendment got it wrong. But you have to have a racist desire within you to want to make the arguments you are making.

                    3. In short, the way you demonstrate to a leftist that you’re ‘not a racist’ is by agreeing with them.

            2. “Unless I did so on the basis of their race, that’s not racist.”

              You did it on the basis of race. Your attempt to evade responsibility resembles your effort to claim that (1) birthers weren’t racist and (2) you weren’t a birther.

    2. I too dislike the term “undocumented.” It makes it sound like they are fighting against red tape. On the other hand, they aren’t “illegals” because that is never a description of a person. It is can only be the description of conduct.

      I prefer “unauthorized.”

      1. Unauthorized is fine, too, it’s only a little euphemistic.

          1. In classical Greece, “rhetoric” was the art of winning arguments independent of whether you had facts and reason on your side, by using tricks that caused your listeners to not evaluate what you were saying objectively, or to neglect consideration of some relevant fact. It was frowned on by philosophers because it would enable you to “win” an argument even if you were wrong.

            Euphemism is a species of rhetoric, a tactic in argumentation designed to mislead people by causing them to not think about some point relevant to the situation, and thus to win despite being wrong.

            In this case, he wants people thinking about illegal immigration without any consideration of the “illegal” part, he wants the illegal immigrants to be treated as “immigrants” who just happen to, never mind why, lack documentation. Lacking documentation is innocent enough, isn’t it? No reason to hold it against a person.

            Except that they lack the documents a person legally present in the country would have because they’re illegally present in the country.

            1. Undocumented isn’t a euphemism. They lack documents.

              FWIW I sometimes say illegal too. It’s used in the law. But undocumented is nice, if for no other reason than it triggers your racism and makes you type paragraphs of bile.

              1. Yeah, and a bank robber lacks a savings account passbook, but that’s not why we frown on their withdrawal.

                1. And you respond with more racism. Now these hard working families seeking a better life are bank robbers.

                  You need to step back and ask yourself why you hate these people so much.

                  1. And again I respond with a remark that has nothing AT ALL to do with race, and you claim I responded with “more racism”. Well, I could hardly respond with less, when I haven’t employed any racism at all at any point.

                    Again, “racism” does not mean, “Dilan Esper disagrees with it.” Unless you’re advocating something that distinguishes between people on the basis of their RACE, you’re not advocating racism.

                    “Racism” isn’t some content free, all purpose epithet. It actually has a meaning, learn it.

                    1. Racism means you have to hate brown immigrants to make arguments as bad as the ones you are making.

                      It’s not just me making this point Brett. You need to admit you are wrong here. That’s how you show you aren’t a bigot.

              2. In the DACA case (Department of Homeland Security v.
                Regents), Justice Sotomayor called the dreamers “undocumented immigrants.” Justice Thomas called them “illegal aliens.” The Chief called them “unauthorized aliens.” Justice Kavanaugh called them “immigrants [who] do not have legal status in the United States under current statutory law.”

                1. Kavanaugh should have acronymed that. IWDNHLSITUSUCSL .

              3. Undocumented isn’t a euphemism. They lack documents.

                Say what you want about Brett, but it absolutely is a euphemism. Yes, they lack documents, but so does the person whose house burned down with all his possessions inside. The salient fact is not that they lack documents, but why they lack documents: because they are here without legal authorization. If they somehow acquire documents without getting them from the government, they will no longer be undocumented but they would still be here unlawfully.

      2. I would go with Present without Inspection and Admission or Parole.

  5. I’d be interested to know more about what it means or meant for those who are not “subject to the jurisdiction” of the US in terms of the limits of enforcing US law against them. Are there limits to the exemption, and what are the limits? After all, immigration law is made by statutes passed by Congress. If “illegal” immigrants are not “subject to the jurisdiction” of the US, wouldn’t that mean that US courts have no jurisdiction to enforce the immigration statute against them? And if they have no jurisdiction to enforce the immigration statute, then they’d have no legal authority to impose any penalty or punishment imposed by that statute, including the authority to deport those in violation of it.

    It seems to me if you want to say that children of illegal immigrants aren’t citizens because their parents aren’t “subject to the jurisdiction” of the US, you’re making the argument that US courts can’t enforce US laws against them at all because the courts have no jurisdiction.

    1. Legal jurisdiction isn’t the only basis for a government imposing on a person. For instance, if we’re at war with a country, we don’t have to claim that their soldiers are subject to our legal jurisdiction in order to shoot them.

      Enforcement of immigration statutes isn’t a criminal process. Immigration judges aren’t Article 3 judges. While the proceedings are quasi-legal, they’re not regular court proceedings. So deportation isn’t dependent on legal jurisdiction.

      1. So what would deportation be dependent on? What authority grants grants immigration judges the right to deport if not US law? At some level, there needs to be some authority for government action. Shooting enemy combatants is authorized through international rules of war, and shooting people not authorized by those rules is a war crime. So what is the authority for deportation if it’s not US law?

      2. Maybe, but are you going to argue they are exempted from all the other laws that diplomats are? Because that’s what makes diplomats not subject to jurisdiction.

  6. It took some courage for the professor to visit this blog and advance an argument that does not flatter white supremacists and xenophobes.

    1. Damn, Reason started hosting Klan meetings now? I knew there was a reason you were here. Though, I think you’ve got your sheets on a bit too tight. Or, maybe not tight enough. It’s not to late for a (how old are you?) post-birth abortion. You could even do the world a favor and abort yourself. One less stupid bigot at Reason (maybe more, depending on how many of the supposed extreme right wing fringe types are actually your split personalities).

      1. THE VOLOKH CONSPIRACY

        This White, male, movement
        conservative blog has operated for

        110 DAYS

        without using a vile racial slur
        and also has operated for

        551 DAYS

        without engaging in partisan,
        viewpoint-driven censorship.

  7. Why aren’t people born in American Samoa, a US territory, US citizens?

    1. I think that’s a very fair question.

      American Samoa seems to occupy a somewhat more independent position than Puerto Rico, in that they actually have their own immigration laws, (You can immigrate there without approval of the US government.) and non-Samoans can’t own land there.

      You might think of them as more of a protectorate than a territory.

    2. Because congress passed a statute saying they aren’t.

      1. So Congress can override the 14th Amendment?

        1. Congress, thanks to Balzac and Downes, can pass different rules for unincorporated territories.

        2. The DC Circuit ruled that the statue was constitutional in 2015, and the Supreme Court declined to hear the case. A district judge in Utah ruled that it was unconstitutional last year, and the 10th Circuit is currently considering the appeal.~

          I’m not endorsing either position: you asked why they aren’t citizens, and that’s the answer. If the statute is struck down, then presumably those people will be citizens. (It may, however, be worth noting that the government of American Samoa defended the statute in both cases.)

          1. The government of American Samoa is devoted to policies which, if American Samoans were US citizens, would be gross and blatant violations of the 14th amendment. They have something similar to an hereditary monarchy going on, you have to be from a specific family/ethnic group to rule. They restrict land ownership to people of Samoan descent.

            Somewhat similar to what the Hawaiians keep trying to sneak in, but much more extreme.

            It would really upend things there if American Samoa were treated like Puerto Rico, rather than a barely affiliated protectorate.

    3. The author’s first article addressed this question:

      [L]ongstanding executive and congressional practice has treated people born in overseas U.S. territories as not being “born … in the United States,” and thus excluded from constitutional citizenship. For most overseas territories (Puerto Rico, the U.S. Virgin Islands, Guam), there’s a statute granting U.S. citizenship. But oddly, no statute grants U.S. citizenship to people born in the U.S. territory of American Samoa. So they are not U.S. citizens (unless naturalized); instead they have (by statute) the unusual status of non-citizen “U.S. nationals.”

      1. It’s worth noting that three American Samoans who challenged their denial of citizenship as unconstitutional recently won their case in Utah District Court. The United States has appealed and it is currently before the 10th Circuit Court of Appeal who heard oral arguments a month ago.

        1. I hope they win. It’s ridiculous they are excluded. I wonder if it dates back to when we occupied and administered the Philippines.

          I once argued that Imelda Marcos should be eligible to run for president.

    4. As pointed out it is statutory but the author also pointed out in his previous post this is allowed because of clearly racist based decisions in the Insular Cases.

    5. This is addressed in Professor Ramsey’s previous post, since it hinges on a different part of the 14th Amendment:

      https://reason.com/2020/10/27/the-original-meaning-of-born-in-the-united-states/

  8. Has any research been done on Metis who called themselves “half breeds” and apparently did not consider themselves US citizens although children were born in the US. Some requested reservations like the native Americans. Would you not expect many examples of children of French traders, British loyalists, and others becoming the subject of local law/regulation/tax discussions about their status?

  9. So, why aren’t Samoans granted citizenship at birth?

    Because they are treated like an indian tribe.

    In American Samoa, there are two distinct components to governance: the traditional chiefly system, the Fa’amatai, and communal lands, where land ownership is held by families. Acquiring land in American Samoa also requires people to be at least 50 percent Samoan.

    “There’s no nobility in America,” said Kruse, when talking about the Fa’amatai political system. “There would be continuous lawsuits, because our customs are contrary, and it is anomalous to the United States.”

    https://www.nbcnews.com/news/asian-america/why-some-american-samoans-don-t-want-u-s-citizenship-n1103256

    1. FWIW, I think this would be a better way to retroactively justify the current status quo. However, I think the actual justification is the Insular Territories aren’t “incorporated” parts of the United States and therefore not within the United States. I think its nonsense from an originalism perspective or from a plain meaning perspective (in fact, there’s very few jurisprudential methods I can think of that lead to the insular cases). But, if Samoans were considered a tribal government that was internally self-administered, I think that would help preserve the current status quo while opening a path for a better one as well.

    2. All right, maybe not as ridiculous as I thought. I gather native Hawai’ans don’t fall under this?

  10. This is a fundamentally unserious grappling with the question because, as I brought up in the previous similar thread, it does not discuss the real fact that Indians were subject to the jurisdiction of the US, when on US soil, but still would not give citizenship to their children when born off of reservations, until a statute was passed.

    There is no reason to think that a Canadian or a Mexican who temporarily crossed to give birth in a better hospital would have been treated differently in 1865. They are not subject to the jurisdiction of the US, unless they are on US soil, which is something materially different from being a US citizen, where you are subject to US jurisdiction even if you are away in France.

    1. Again, of the issue were just birth tourism, I agree you would have at least an interesting argument.

      But most birth tourists are not Mexicans, and the Brett Bellmore’s of the world cannot get their woodies unless we start punishing Mexican-American children.

      1. Well what about the issue of birth tourism? That is, in fact, an issue pertinent to this discussion.

        1. I don’t think children born in the USA of tourist parents should be citizens at birth. But, Ramsey makes a compelling case they are.

          1. I don’t know if there is a compelling case, there may be, but Ramsey certainly has not presented one.

            1. I’m persuaded that “subject to the jurisdiction” means subject to our laws and tourists are subject to our laws.

              1. That’s right.

                The argument against it is that subject to jurisdiction imposes a kind of domicile requirement. And there is some old caselaw out there that talks about temporary sojourners not being subject to jurisdiction. I am not saying I buy that, but at least it’s not crazy.

                But undocumented immigrants are domiciled here, and as to those people, the position their kids born here aren’t citizens is obvious racist BS.

              2. So were Indians when they weren’t on the reservation though. If a Chinese woman flies into Seattle, has her kid, drives to Vancouver and then punches an American resulting in him being hospitalized, there is no American court where that American can bring an action against the Chinese woman.

                1. Why wouldn’t the Clark County Superior Court be a perfectly acceptable place to bring an action against the Chinese woman?

                  Also, even assuming you actually meant Vancouver, Canada, the issue is could she have been sued (or arrested and charged) while in Seattle, you know, the place where she gave birth. The issue is was the person subject to the jurisdiction of the United States and, when the Chinese woman gave birth in Seattle, she was. Pretty clearly, unless she was a diplomat, etc.

                2. Lack of venue and lack of personal jurisdiction are waivable, so a lawsuit could, in fact, be brought in American courts. Provided she puts in a general appearance and doesn’t move for dismissal for forum non conveniens, the court would hear the merits of the case against the Chinese woman.

          2. Josh R…Would like to read your reasoning = I don’t think children born in the USA of tourist parents should be citizens at birth.

            How do you define ‘birth tourism’? Is that any illegal alien female who births a baby on US soil?

            1. By tourist, I mean someone who doesn’t live in the USA. An unauthorized alien who has their domicile in the USA would not be a tourist.

  11. All the leftist originalists here. THERE IS ONLY ONE INTERPRETATION!!! Its amusing. Didn’t Kagan say “we are all originalists now”? Its true.

    An interprtation which takes into account changing circumstances says “subject to jurisdiction” is long winded way to say “allegiance”. Foreign diplomats have no allegiance to the US so their children are not citizens.

    Neither do Mexican citizens.

    1. There is not only one interpretation. As I said, birth tourists raise an interesting argument, because if domicile.

      But undocumented immigrants are generally domiciled here. Nobody doubts they are subject to our jurisdiction. So the only reason to lie about it is racism.

    2. “All the leftist originalists here. THERE IS ONLY ONE INTERPRETATION!!! Its amusing. Didn’t Kagan say “we are all originalists now”? Its true.”

      First, just a nit: Kagan said “we’re all textualists now”.

      Second, I’m not sure that the folks from the left are necessarily standing up for originalism so much as pointing out that the motives for deviating from the most straightforward reading of the text are pretty suspect. And also that the arguments for doing so are really bad.

      1. First, just a nit: Kagan said “we’re all textualists now”.

        She said “we are all originalists” at her confirmation hearing, and “we’re all textualists now” during a lecture at Harvard.

    3. Did the parents have Wong Kim Ark have allegiance to the USA?

        1. Your opinion of the meaning of “subject to the jurisdiction” is foreclosed by Wong Kim Ark.

  12. “But the U.S. commonly (at the time) entered into treaties guaranteeing tribes authority over internal matters, including governance of tribal members. Some treaties expressly referred to tribal “jurisdiction.””

    As the ratification debates make clear, Native Americans were clearly subject to the jurisdiction of the US in some sense. But some were not subject to the “complete” jurisdiction of the US due to their status as quasi-foreign entities. This was true not only while they were physically present in their tribal territories within the US, but also remained true even if they stepped foot outside of those territories into the rest of the US. The touchstone was their quasi-foreign status and the political status of their subjection to the “complete” jurisdiction of the US, as determined in part by treaties.

    Just as Native Americans were excluded from the complete jurisdiction of the US by treaty and by nature of their quasi-foreign status — regardless of their physical presence in any part of the US — so too could persons owing allegiance to a fully foreign sovereign be excluded from the complete jurisdiction of the US. The United States apparently had some prerogative to sovereignly decide, by international treaties or legislation or simply administrative practice, who would be subject to its jurisdiction.

    1. As I said in the earlier thread, that’s a stupid argument because it would make US citizenship wholly dependent on whether foreign countries impose some sort of allegiance obligation. If a foreign country changes its law and says these people are no citizens of that country, suddenly they start being American citizens.

      1. “it would make US citizenship wholly dependent on whether foreign countries impose some sort of allegiance obligation.”

        I disagree. See my explanation below.

  13. I very much appreciate Professor Ramsey’s work on this issue. I haven’t been able to fully digest the paper yet but I expect I will return to it and look forward to reading the posts.

    In looking at this question, I have focused mainly on the ratification debates. But Ramsey’s point is well taken that they shouldn’t be the be-all end-all. In particular, it’s possible this issue could highlight an instance (rare in constitutional law IMO) where the intent of the drafters and ratifiers seems to be at odds with the most plain and ordinary original public meaning.

    Here are just a few of the many sources outside of the debates that point in a different direction:

    “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.”

    -The Slaughterhouse Cases

    “The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.”

    – Elk v. Wilkins

    “[S]ubject to the jurisdiction meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

    – Thomas M. Cooley, The General Principles of Constitutional Law in America

    1. Wong Kim Ark, not the dictum in Slaughter-House, controls.

      1. I tend to agree with Wong Kim Ark, actually, though I would read its holding narrowly.

        1. Only the Supreme Court gets to tell us that cases are limited to their facts. They haven’t done that with Wong Kim Ark.

  14. One thing that often animates discussions like this is a forceful desire on the part of legal academics, and others who study and debate such issues, to arrive at that good old “bright line rule,” even when the evidence yields a murkier picture regarding original meaning.

    1. Yeah. Because we have to practice law and advise our clients about stuff.

  15. Ramsey writes:

    “While undoubtedly important, the drafting debates should be
    neither the starting point nor the touchstone of the inquiry into original meaning. Two points are of greater significance.

    First, the prevailing pre-Amendment common law view was that, as a general matter, U.S.-born children of aliens were U.S. citizens at birth. . . To be sure, that this approach existed in common law does not prove the Fourteenth Amendment adopted it.

    How is it “of greater significance” than the debates when it does not prove that the 14A adopted it? That doesn’t seem compelling. There was no immigration law back then. Anyone was allowed to come and settle (or “domicile”) in the US as a matter of policy and practice. Yet the US had the right to discontinue that practice.

    “But its existence makes it plausible that the Amendment adopted it, if (as Howard stated) the Amendment sought largely to constitutionalize existing practice.”

    I don’t see this. Howard said that the amendment was “simply declaratory” of current law. The most reasonable read of this statement points us, of course, to the 1866 Civil Rights Act they had just passed a month prior, and which contained a virtually identical sentence except in the amendment, “subject to its jurisdiction” replaced “not subject to any foreign power, excluding Indians not taxed.”

    I see that Ramsey later admits, “the Amendment’s drafters (who were also the Act’s drafters) said that the Amendment constitutionalized the Act’s citizenship provisions, indicating that although the words differed they should be read to the same effect.” And his response to this point? It seems to be along the lines of what I hinted at previously — that we should disregard the drafter’s express statements about what their words meant, and instead suppose that what they meant and what they said are two different things. A possibility, I suppose, but doesn’t seem likely.

    “Second, as a textual matter, it is hard to understand how U.S.-born children of aliens could be not “subject to the jurisdiction” of the United States. ”

    Well it is hard to understand, but less so upon reading the ratification debates and learn how quasi foreign and foreign persons were not necessarily “subject to the jurisdiction” in a maximal sense of a “full and complete” jurisdiction.

    Regarding the most frequently discussed of Howard’s statements on this issue, Ramsey writes that the opposing interpretation ” is redundant (and ungrammatical).” But that is true either way you read the statement.

    To reach some kind of bottom line here, Ramsey’s conclusion is that the ratification debates “are at best ambiguous” and “at most ambiguous” on the question. In his view a plain textual meaning sort of analysis tips the scales in favor of his view. But the word “jurisdiction” is a highly varied and vague term, narrowed only by the specialized meaning evident in the debates and related materials.

    There is definitely a tension and contradiction that runs through the ratification debates. Over and over, the Senators affirmed that the meaning of “subject to its jurisdiction” excluded those with foreign allegiances and even quasi foreign allegiances such as Native Americans. And yet at the same time, as Ramsey rightly explains, it is also repeatedly affirmed that the offspring of Chinese and other immigrants who had settled here would be citizens.

    Usually the arguments on both sides resolve this tension largely by dismissing one side or another, as Ramsey does here. It seems more plausible to me that there is some gray area where this apparent contradiction can be resolved. Quite simply, it seems that the US generally did not consider those who came and settled here to be subject to a foreign power any longer, no matter where they came from, perhaps unless otherwise dictated by treaty or other US policy. This is true regardless of how a foreign sovereign would have seen the matter, which is in keeping with founding principles regarding the right to repudiate political allegiances.

    1. Supporting my last point here is the Expatriation Act of 1868, which declared expatriation to be “a natural and inherent right of all people” and declared “that any declaration, instruction, opinion, order, or decision of any officers of this government which restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”

      Wiki cites Erler in explaining: “The intent of the act was to counter claims by other countries that U.S. citizens owed them allegiance, and was an explicit rejection of the feudal common law principle of perpetual allegiance.”

      Therefore, a foreign nation’s view on whether persons in the US had any remaining foreign allegiance really had no bearing on the matter. It was for the US to decide who did or did not have foreign allegiances, and the US intended to give full effect to this “natural and inherent right of all people” to disclaim such allegiances.

      1. That argument gets you out of the frying pan but puts you right in the fire.

        If it’s US law, not foreign allegiances, that counts, well, US law says these people are citizens who owe the US allegiance, and subjects them to US jurisdiction, and doesn’t say anything about their foreign allegiance.

        Again, if you want to actually GIVE undocumented immigrants diplomatic immunity, and say the only thing you can do legally is deport them and you can’t charge them with anything, sure, it’s possible to make them not subject to jurisdiction. But nobody’s proposing to do that.

        1. No, that’s not accurate. As Ramsey admits, “subject to the jurisdiction” referred to certain exclusions from the concept of national jurisdiction, which he also admits was closely interrelated with citizenship law (which was then common law but now is undisputedly decided by Congress).

          And those exclusions in Ramsey’s estimation are limited to “diplomats, foreign armies and tribal Native Americans.” Yet only one of these three has diplomatic immunity. Tribal Native Americans were still subject to US laws generally speaking, although the US did not regulate them then within their territories, and foreign soldiers are likewise subject to US laws.

          Even in Ramsey’s account, “subject to the jurisdiction” did not merely mean “subject to US laws.”

          1. Perhaps Ramsey is arguing that you are not “subject to the jurisdiction” if there is a class of acts for which the US does not have jurisdiction even if there are many classes where it does. So even without diplomatic immunity, foreign armies and Native Americans would not be subject to the jurisdiction. I think all other aliens, including tourists, would be.

            1. Right. And also, Indians DO have certain jurisdictional immunities, as SCOTUS just reaffirmed in McGirt.

    2. Actually what the Senators affirmed over and over was that they understood “subject to its jurisdiction” to mean subject to US law, an interpretation with the advantage that it matches the plain language meaning of the word jurisdiction. This is especially evident in the discussions of Indians, where they pointed out more than once that the United States regulated Indians by making treaties with their tribes. If you want to climb on that bandwagon you can start by demonstrating that the US doesn’t apply domestic law to illegal immigrants, but relies on their origin countries to control them when they are on American soil.

      1. How do you figure?

        Especially evident in the discussion of Indians is that “subject to the jurisdiction” did not merely mean “subject to US law” since the Indians were subject to US laws and jurisdiction in some sense.

        1. I don’t expect this to make any impact on you since it clearly didn’t when we ran this merry-go-round two years ago, but for the benefit of others here are some Trumbull quotes from “those discussions”:

          Can you sue a Navajoe 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 would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty?

          and

          Would the Senator from Wisconsin think for a moment of bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over 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.

          1. And yet Trumbull and Howard clearly state that the Native Americans are subject to the jurisdiction of the US in some sense, just not in the sense they mean to apply here. Native Americans would have been subject to US criminal laws when not in their tribal territories. How can you not see this?

            Another interesting tidbit, not necessary to make the case, Howard even seems to admit that Congress could make Native Americans subject to its jurisdiction even within the tribal territories, if they chose to. It’s up to Congress, in part, to decide who is subject to the jurisdiction of the US.

            Trumbull, in the sentence right before your first quote: “”Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means.””

            Johnson in response to this (supporting Doolittle): “The amendment proposed by my friend from Wisconsin I think, and I submit it to the Senate, should be adopted. The honorable member from Illinois seems to think it unnecessary, because, according to his interpretation of the amendment as it stands, it excludes those who are proposed to be excluded by the amendment of the Senator from Wisconsin, . . . and he supposes and states very positively that the Indians are not subject to the jurisdiction of the United States. With due deference to my friend from Illinois, I think he is in error. They are within the territorial limits of the United States. . . In one sense, therefore, they are a part of the people of the United States . . .”

            Trumbull’s response (emphasis added): “I think it better to avoid these words and that the language proposed in this constitutional amendment is better than the language in the civil rights bill. The object to be arrived at is the same. I have already replied to the suggestion as to the Indians being subject to our jurisdiction. They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States . . .For these reasons I think this language is better than the language employed by the civil rights bill.

            I think there are decisions that treat them as subjects in some respects. In some sense they are regarded as within the territorial boundaries of the United States, but I do not think they are subject to the jurisdiction of the United States in any legitimate sense; certainly not in the sense that the language is used here. The language seems to me to be better chosen than it was in the other bill. There is a difficulty about the words, “Indians not taxed.” . .

            Howard, supporting Trumbull, with interjection by Fessenden: “I concur entirely with the honorable Senator from Illinois, 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, coextensive in all respects with the constitutional power 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. Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction . . .

            The Indian who is still connected by his tribal relation with the government of his tribe is subject for crimes committed against the laws or usages of the tribe to the tribe itself, and not to any foreign or other tribunal. I believe that has been the uniform course of decision on that subject. The United States courts have no power to punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe.
            Mr. FESSENDEN. Within the territory.
            Mr. HOWARD. Yes, sir.”

            One more interesting side note. If we go by the intent of Senator Saulsbury, then the citizenship clause included Native Americans citizens and they were all made citizens.

            1. ML, what you added supports my position, because it is all about being subject to US law. Even when Trumbull talks about allegiance he means a duty to obey the sovereign.

              The fact that Indians were only partially subject to US law is why he goes on about “full jurisdiction”. You need to remember that Indians on their tribal lands were still unquestionably within the territorial jurisdiction of the US – those lands were not little Lesothos, separate countries surrounded by America, they were part of America – and yet they were not subject to its laws.

              And that is what is common between these excluded treaty Indians and diplomats and foreign armies, that despite being in the US they enjoy some immunity from US law. If you can explain how illegal immigrants are also immune, even a little, despite being in the United States then maybe you have an argument.

              1. I get what you are saying, but Indians were only more “immune” by some degree to US laws within their quasi-foreign territories and tribes.

                In the US outside of that, they would have been situated similarly to any foreign person who owed allegiance to a foreign sovereign, with which the US may or may not have treaties.

                The fact underlying the entire discussion is that all those who the US had allowed, in its sovereign prerogative, to settle here permanently (as opposed to the “sojourners” who are mentioned), were apparently not considered as owing allegiance to a foreign sovereign.

                Cowan has a racist rant about Chinese and Gypsies, and if you think about it for a second, he’s clearly talking about excluding them on the basis of race, rather than on the basis of a neutral political status that would have applied equally to white Europeans. That’s why the critical part of Conness’ response is the first words, where he states that he fails to see how Cowan’s remarks are in any way relevant to the question at hand.

                1. Indians were only more “immune” by some degree to US laws within their quasi-foreign territories and tribes

                  Exactly. And because the United States acknowledged they were immune to some degree they were not fully subject to its jurisdiction.
                  The only sovereign prerogative that is at play is the prerogative to recognize persons within the territory who, by centuries-old conventions of war or diplomacy, or by treaty, are exempted from conforming to US law. The “consent of the sovereign” notion you are introducing here wasn’t part of the Senate debate that we were supposedly discussing, but I will respond anyway: The consent of the United States that is most directly relevant is its consent to the citizenship of all people born within its borders who are subject to its laws, and that consent is embodied not in a mere act of Congress but in an amendment to its fundamental law, the Constitution.

                  1. Outside of those quasi-foreign territories, Native Americans would have been generally subject to US laws as much as any other foreign person.

                    Within the tribal territories, Native Americans were situated the same as foreign persons in other countries. Trumbull specifically compares them to Mexicans in Mexico!!

                    Within the rest of the US, Native Americans were again situated the same as foreign persons owing foreign allegiance who are in the US. Which means, even though they were generally subject to US laws while present, they owed allegiance to a foreign sovereign that was not subject to US law, and therefore were not subject to a “full and complete” jurisdiction in the words of Howard, or as Trumbull put it “They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.”

    3. If being “settled” in the USA suffices to be considered not subject to a foreign power, are unauthorized aliens settled? How about holders of the various temporary visas that end up staying in the USA for long periods of time? At least I can see your interpretation would rule out tourists.

      1. And again, it’s back to domicile.

        If one wants to argue “subject to jurisdiction” excludes someone other than children of diplomats, and Indians back in the day, you need a theory that works with the text.

        One possibility would be to actually grant diplomatic immunity to undocumented immigrants, but nobody wants to do that.

        Another possibility would be to interpret it to exclude temporary sojourners, based on the idea that because they never change domiciles, they are not subject to complete jurisdiction. But that only gets at birth tourism, not illegal immigration.

        But at the end of the day, the argument that children of undocumented immigrants domiciled in the US are not included in the 14th Amendment’s citizenship clause is a political position that’s looking for a legal theory, but doesn’t have one.

        1. I’m just arguing for legal domicile, that you can’t be considered to be domiciled in a place you aren’t legally present.

          “Another possibility would be to interpret it to exclude temporary sojourners, based on the idea that because they never change domiciles, they are not subject to complete jurisdiction. But that only gets at birth tourism, not illegal immigration.”

          Illegal immigrants, in theory at least, are only temporary sojourners, because they’re subject to removal if they’re caught.

          1. Brett, undocumented immigrants are legally domiciled here. I know that sounds contradictory to you but it isn’t. If a case is brought where domicile matters, they are domiciled here. Domicile, under the law, is where you intend to semi-permanently remain. Has nothing to do with immigration status.

      2. Josh, Good questions. It seems that immigrating to the US sufficed to be considered not subject to a foreign power at the time of the 14th amendment. And back then, that simply meant moving and domiciling here, as there were basically no immigration laws.

        Beyond that, this is the point where, I think, people will need to have the humility and integrity to admit that original meaning does not necessarily provide a clear answer to all of today’s questions. With basically no immigration laws back then, compared to what we have now, doesn’t that make sense? Treacherous and lengthy journeys by sea lay between the US and most nations, and the US contained of vast stretches of totally uninhabited wilderness and frontiers. It was a different world in many ways.

        On the one hand, you could argue that Ramsey’s interpretation of the citizenship clause relies on a faulty key assumption which conflates the meaning of “subject to the jurisdiction” with being equivalent to and defined by the prevailing US common law of citizenship and the policy of open borders, even though those things were subject to change and not obviously determinative of the meaning of the 14th amendment. One could further argue that the concept of “domicile” later described in Wong Kim Ark is a legal act, done in accordance with the law, and recognized in some legal sense.

        On the other hand, you might argue that the citizenship clause did largely enshrine a rule that reflected those practices, frozen in time and applied as a constitutional rule, and incorporated the idea of anyone who settled here as being de facto exercising their inalienable right of expatriation. Either way, it’s clear that citizenship could not be revoked except in special circumstances. And there would be many other avenues for arguing that, even if the US could constitutionally change its policy in some way, illegal immigrants domiciled here have been de facto accepted by the US as being subject to its jurisdiction, particularly when longstanding US policy has encouraged such nominally “illegal” immigration.

        In any event, it seems the original meaning of “subject to the jurisdiction” incorporated things that the US had at least some degree of discretion to define, whether pursuant to treaties or legislation.

  16. (Wish I included some section and subsection numbering in the above).

    A final instructive point from the ratification debates is not mentioned anywhere in Ramsey’s paper.

    During the Cowan/Conness exchange that Ramsey describes, Cowan asked “Have they any more rights than a sojourner in the
    United States?” (referring to Chinese and other immigrants who were settled in the US).

    And Conness’ implicit answer to this question was a clear “yes.” As Ramsey notes, nobody seemed to disagree with this overall interpretation.

  17. Question for Professor Ramsey and anyone else:

    If a Native American who maintained tribal relations in 1866 stepped foot outside of their tribal territory and then gave birth, would the child be a citizen?

    Seems to me the answer is clearly no.

    1. I believe Ramsey implied the answer is no:

      Though born within our territorial limits, the Indians are considered as born under the jurisdiction of their tribes.

      1. Yes, I agree.

        Native Americans outside of their territories would have been subject to US laws.

        Native Americans outside of their territories would not have been “subject to the jurisdiction” in the sense of the citizenship clause.

        Why? It’s explained over and over again. It is because they have allegiance to a foreign sovereign — and even a quasi-foreign, quasi-sovereign counted.

        Howard: “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.”

  18. An intelligent analysis in an 1871 Federal case challenging denial of voting rights.
    “The plaintiff being the child of an unnaturalized alien, and unnaturalized himself, cannot claim to be an American citizen, except upon the single ground, that he was born
    upon the soil, and subject to the jurisdiction of the United States.” ….
    “The case turns upon the single point—was the plaintiff born subject to the jurisdiction of the United States—under its allegiance?”

    The court’s ruling was no. Mother was Native American and not subject to jurisdiction of US. “On the other hand, if the plaintiff is held to follow the condition of his father he is a Canadian of mixed blood, born in the allegiance of the British crown, and therefore a British subject.”
    Treaties may or may not be relevant, you may decide. Allegiance does appear to be central to the ruling.

    McKay v. Campbell, 16 Fed. Cas. 11, D. Oregon
    https://law.resource.org/pub/us/case/reporter/F.Cas/0016.f.cas/0016.f.cas.0161.pdf

  19. It seems to me that the question of “subject to the jurisdiction of the United States” can be best summarised as that any person not subject to that jurisdiction is so because they are subject to some other jurisdiction.

    So diplomats have diplomatic immunity and are subject to the jurisdiction of the sending state. An occupying enemy army are similarly subject to the jurisdiction of the enemy. Sovereign Indian tribes have their own jurisdictions.

    Aliens present in the United States without the consent of the US immigration authorities are not subject to the jurisdiction of the state of their nationality.

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