New Article on "Birthright Citizenship and Undocumented Immigrants"

My new Just Security article explains why denying birthright citizenship to children of undocumented immigrants would be unconstitutional.

At the Just Security site, I have a new article explaining why the incoming Trump administration's apparent plan to deny birthright citizenship to US-born children of undocumented immigrants is unconstitutional:

The incoming Trump administration may be preparing to deny citizenship rights to children of undocumented immigrants born in the United States… According to the New York Times, "the team plans to stop issuing citizenship-affirming documents, like passports and Social Security cards, to infants born on domestic soil to undocumented migrant parents in a bid to end birthright citizenship."

Such policies would be a blatant violation of the Fourteenth Amendment, both the text and the original meaning. Section 1 of the Amendment grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." There is no exception for children of illegal migrants. There is broad agreement on that point among most constitutional law scholars, across the ideological and methodological spectrum….

In the article, I also criticize various arguments to the effect that children of undocumented immigrants are not covered because illegal migrants are not within the "jurisdiction" of the United States. That includes both traditional claims that "jurisdiction" only covers people who have the same rights as citizens (an argument that would destroy the entire purpose of the Citizenship Clause), and newer arguments  claiming that undocumented migrants aren't covered because they are "invaders."

Comments

[Frank Drackman]

I'm not sure I agree with you a hundred percent on your legal work, there, Ilya.

[Dr. Ed 2]

I don't agree one percent...

What part of "subject to the laws thereof" doesn't apply -- illegal aliens are not subject to the laws thereof.

[TheAmazingEmu]

Sure they are. They are prosecuted in court for violations of the law.

[Stupid Government Tricks]

Then how can they be arrested and deported?

It's a funny world where committing a crime (crossing the border) immunizes you against being prosecuted for the crime.

It's even dumber than the definition of chutzpah as murdering your parents and begging mercy as an orphan.

[Greg J]

To quote from the currently immediately below comment:
Just for one example, Trumbull said, “What do we mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.”

If you're a citizen of another country, then when your children are born in America they are citizens of that other country, NOT the US.

The slaves were not citizens of another country, thus those who were born in the US were ‘subject to the jurisdiction of the United States’, and therefore US Citizens.

But yeah, do assert complete ignorance. It makes for really stupid arguments, but hey, that's all you have, clearly

[Gregory]

Your argument relies on the assumption that children born in another country automatically get their parents citizenship, which is rarely the case, even if it is normally a simple process. I think you’re being willfully ignorant because you don’t actually care all that much.

[Greg J]

Americans born in another country to American parents automatically get American citizenship.

[David Nieporent]

Americans born in another country to American parents automatically get American citizenship.

Not all of them, and only by statute, not the constitution.

[Greg J]

Really?

Which Americans born today of American citizens in a foreign country do not automatically get US citizenship?

Note I said "parents" there. I'm fully comfortable with "guy goes to foreign country, impregnates prostitute, her child doesn't get US citizenship"

[Stupid Government Tricks]

To quote from the comment I replied to ...

illegal aliens are not subject to the laws thereof

So I quite naturally asked how they can be arrested for violating a law they are not subject to?

But yeah, do assert complete stupidity. It makes for really stupid arguments, but hey, that’s all you have, clearly.

[Noscitur a sociis]

If you’re a citizen of another country, then when your children are born in America they are citizens of that other country, NOT the US.

Seems a tad circular.

[David Nieporent]

If you’re a citizen of another country, then when your children are born in America they are citizens of that other country, NOT the US.

That is not a correct statement of American law. Nor is it necessarily true of foreign law. And why on earth would American citizenship depend on the laws of another country? That would mean that if Mexico tomorrow passes a law that says people born to Mexican citizens on U.S. soil are not citizens of Mexico, then all the kids in this category would indeed be U.S. citizens. That wouldn't make any sense at all.

You are misinterpreting Trumbull's statement. To read it as you do would not only contradict statements such as those by Howard and Conness, but would nearly render the 14th amendment's crucial guarantee of citizenship a dead letter. The only people it would then apply to would be blacks, and while indeed the primary justification of the 14th was to overturn Dred Scott and grant citizenship to blacks, that's a really odd way to go about it if that was their intent. Why not just say blacks if that's what they meant? Why use a sweeping phrase and then add a caveat that wipes away almost the whole phrase?

Children of illegal immigrants actually in the U.S. owe full allegiance to the U.S. Not partial.

[Josh R]

Moreover, Trumbull also said, “Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.”

[Greg J]

That is not a correct statement of American law

If you are an American citizen, and you give birth to a child in another country, that child is an American citizen.

What would be nonsensical and ridiculous would be to give foreigners a better deal for them than they'd get as American citizens

[David Nieporent]

If you are an American citizen, and you give birth to a child in another country, that child is an American citizen.

Not necessarily, no.

[David Nieporent]

What part of “subject to the laws thereof” doesn’t apply — illegal aliens are not subject to the laws thereof.

You are very very confused. Of course the children of illegal aliens are subject to the laws of the U.S. That's why they can be arrested and prosecuted for crimes. Compare them with the children of diplomats, who cannot be.

[Ghost of Patrick Henry]

They are the same legal status as children of foreign diplomats. Born here but of citizens of another country, ergo, not U.S. citizens. Every illegal alien is, by definition, a subject of a different sovereign.

[SRG2]

Obviously, no illegal immigrants are in prison for crimes they've committed because that would mean they were subject to US jurisdiction.

[MatthewSlyfield]

if illegal aliens are not subject to the laws of the United States, how is it that Jose Antonio Ibarra was convicted of the murder of Laken Riley?

https://www.bbc.com/news/articles/c23829939rjo

[M L]

As I recall, Ilya Shapiro once admitted that there is a strong argument that the Constitution doesn’t mandate birthright citizenship, even though he is for open borders. OP could take a cue from the other Ilya on intellectual honesty, or at least being objective once in a while rather than playing the role of zealous advocate when you are supposed to be an academic.

“That includes both traditional claims that “jurisdiction” only covers people who have the same rights as citizens (an argument that would destroy the entire purpose of the Citizenship Clause)”

You haven’t addressed anything remotely resembling the actual counterargument here. The counterargument is, first, that “jurisdiction” here does not simply mean subject to laws, instead it means a “full and complete” jurisdiction in a sense that excludes those subject to a foreign power – even a quasi-foreign power such as the Indian tribes, in the case of Indians who “maintained tribal relations.”

That much is basically irrefutably proven by the 39th Congress debates. The whole discussion from beginning to end supports this. Just for one example, Trumbull said, “What do we mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.”

In no sense can any of this possibly be construed as defeating the entire purpose of the citizenship clause. That is a ridiculous claim that shows either dishonesty or an abysmal lack of understanding. Hopefully the full article is somehow marginally better than this excerpt.

[cannpro]

1) When did Ilya Somin flip his position as you alledge?

2) in US vs. Wong Kim Ark the Supreme Court addressed your silly “full and complete” jurisdiction argument. Foreigner, while here, are subject the fully and complete jurisdiction of the US. Foreign governments get no say.

[Brett Bellmore]

1) Did you miss the "Shapiro"?

2) I think the position Ilya Somin is arguing against is not the best interpretation of the birthright citizenship clause, but worse cases routinely prevail, so it can hardly be said to be frivolous, either.

Does "subject to the jurisdiction" mean "We have the raw power to impose our jurisdiction on you", or does it mean "You have voluntarily submitted to our jurisdiction"? There's a colorable argument that illegal aliens, being present contrary to our law, have NOT voluntarily submitted to our jurisdiction.

Because, yes, Ilya: They are invaders.

[ducksalad]

Four questions:

1. Do you believe a crime requires mens rea and voluntary action?
2. Do you allege that an infant, at the moment of leaving the birth canal, had mens rea and voluntarily made a decision to flout US jurisdiction? Or as pro-lifer, do you allege the fetus committed the crime at the time of conception?
3. Do you think children of US citizens who defy law enforcement or legitimate authority – for example, by attacking the capitol building – should lose their citizenship?
4. More generally, do you think criminal status is legally inherited?

[Brett Bellmore]

1. Generally, yes, and irrelevantly so, since not being a US citizen isn't a crime.

2. No crime is involved on their part, but notice that under existing doctrine, the children of diplomats are not US citizens at birth. So all we'd be doing is extending that status to the children of illegal aliens.

3. Again, this has nothing to do with crimes, so the question is irrelevant. Also, no.

4. Again, this has nothing to do with crimes, but again, no.

[ducksalad]

Well, you used the word "illegal", which leads one to believe that somebody broke a law and it is relevant.

Diplomats and their children are not subject to our jurisdiction because they have diplomatic immunity. Meaning immunity from being prosecuted in our courts.

Illegal aliens - and their children - do not have diplomatic immunity and can be prosecuted in our courts.

The diplomat exception is a strong evidence FOR interpreting jurisdiction in the ordinary way.

[Randal]

So all we’d be doing is extending [diplomats'] status to the children of illegal aliens.

Yes, we could do that... if we also said they were exempt from our jurisdiction, just like diplomats are.

You really want to give all illegal aliens (or even just their children) diplomatic immunity? That's insane.

[Harvey Mosley]

Yes, let's give all illegal aliens diplomatic immunity. Then we can deport them without a hearing since they are not in the country with our permission. I would gladly give up the option of prosecuting in exchange for immediate deportation without any hearings.

Those with diplomatic immunity are not subject to prosecution but they don't get to stay without our permission.

[Randal]

Yes, let’s give all illegal aliens diplomatic immunity. Then we can deport them without a hearing...

We absolutely cannot seize and deport diplomats! Are you insane? We can pressure them to leave, both by appealing to the goodwill of their sponsoring government to have them recalled, and by threatening to revoke their diplomatic immunity.

Also, the requirement for a hearing doesn't turn (solely) on whether they're subject to our jurisdiction or not. It comes from a combination of federal law, treaty obligations, and due process.

You are just confused up the wazoo trying to justify your xenophobia.

[Brett Bellmore]

And what can we do after we've revoked their diplomatic immunity? Oh, right: Deport them.

He's right, it's not really a downside that we couldn't try them for their crimes, since they should properly be immediately ejected from the country regardless.

[David Nieporent]

Um, you think that if a non-citizen (people keep trying to narrow this to illegal aliens, but this (mis)interpretation of the 14th amendment would apply to legal ones just as much) kills someone, that we should just deport him rather than jail or execute him?

[Randal]

And what can we do after we’ve revoked their diplomatic immunity? Oh, right: Deport them.

Exactly. So then what's your proposal? Illegal immigrants get diplomatic immunity up until the point that someone decides to arrest or deport them, and then it suddenly vanishes? Sorry, the constitution works on substance, not magic words. Either they have immunity or they don't.

[Randal]

There’s a colorable argument that illegal aliens, being present contrary to our law, have NOT voluntarily submitted to our jurisdiction.

Oh Brett, how can you be so stupid as to think that people can simply voluntarily opt out of being subject to our jurisdiction? That would apply just as easily to all criminals.

We fought a Civil War to prove that not even a state could opt out. There's no way that individuals can.

[SRG2]

Perhaps by "colorable argument" Brett means, an argument he found in his adult colouring book.

[Brett Bellmore]

What I mean is no worse than arguments that prevail all the time, like the one that turned the interstate commerce clause into the 'commerce' clause.

So much of current constitutional jurisprudence is crap, that I don't automatically assume that crap arguments are going nowhere.

[Randal]

And you're fine embracing those crap arguments if they get you the outcome you want.

Well at least you're honest about your lack of principle. I'll be sure to remember this next time you harp on about originalism or History & Tradition or something, seeing how easily you're willing to jettison those things yourself.

[Brett Bellmore]

Did you somehow miss this?

"2) I think the position Ilya Somin is arguing against is not the best interpretation of the birthright citizenship clause, but worse cases routinely prevail, so it can hardly be said to be frivolous, either."

I actually think that Somin is right about the birthright clause. I just don't think that the contrary case is so weak as to be frivolous, worse cases win the day all the time. Our constitutional jurisprudence would look very different otherwise.

I'm not embracing those crap arguments, I'm exploring them, seeing how they'd work, what arguments you'd advance to try to get one of those wrongful court victories like Wickard.

By preference? I'd amend the birthright clause, so that it only applied to the children of people whose legal residence was the US. If you're here on a non-immigrant visa or illegally? No birthright citizenship. But that's not what the Constitution says today.

We should do something about that.

[Sarcastr0]

"I’m not embracing those crap arguments, I’m exploring them, seeing how they’d work, what arguments you’d advance to try to get one of those wrongful court victories like Wickard."

Brett's fidelity to the Constitution ends here, as well all knew it would.

I look forwards to bringing this up the next time he takes his Grand Originalist Moral Stand on the Second Amendment.

[bernard11]

This is all nonsense - pettifoggery in the service of xenophobia.

How the hell do newborns "owe allegiance" to anyone? Do they swear oaths, sign documents? No. They don't.

Who they owe it to is a matter of law, and in the US the law is clear. They are citizens, owing allegiance to the US. It makes no sense that Russia or Brazil can change this, change American law, by claiming the infant is a citizen of that country, owing it allegiance. Of course they can declare someone a Russian or Brazilian citizen, but that's not going to invalidate the individual's US citizenship.

[Brett Bellmore]

Note the recognized exceptions to birthright citizenship, the children of diplomats, Indian tribes, or invading troops. In all these cases, the question asked is who the parents owe allegiance to, not who the newborns do.

[ducksalad]

In all these cases, the question asked is who the parents owe allegiance

Multiple things wrong with this statement.

First of all, it’s factually false. The diplomat’s children have diplomatic immunity because of US law granting them immunity which precisely means not subject to the jurisdiction of our courts. It’s not because they claimed allegiance. You can’t get diplomatic immunity by yelling “allegiance” when the police try to arrest you, and it’s surprising you believe this.

Second, you don’t understand allegiance. If the government of Iran declared you a citizen, that wouldn’t mean you have allegiance to them. Iran declares people Iranian citizens against their will all the time.

As for the Indians, again, it's because US law at the time exempted them from jurisdiction in many respects - they were not subject to tax and were entitled to handle internal criminal matters themselves. You, Brett, could not get out of your taxes by declaring yourself allegiant to an Indian tribe.

The allegiance and loyalty stuff is (a) made up because that's what you'd like to see (but unfortunately it's nowhere in the text), and (b) a poor basis for citizenship law for minors, because the concepts simply don't apply to infants.

[M L]

It isn't nonsense at all. If you actually care, read the 39th Congress discussion of the citizenship clause.

Xenophobia? Ok, setting aside the constitutional issue, what policy makes sense here. Do you think "birth tourism" and maternity hotels make sense? Harry Reid said "no sane country" would do this.

[Sarcastr0]

If only there were more to this discussion than birth tourism and maternity hotels.

But nah, no benefits, only anecdotal costs! That's the sign of a well thought out and certainly not xenophobia-driven position.

[Bob from Ohio]

"no benefits, only anecdotal costs"

At worst, just the reverse of your argument of "all benefits, no costs".

[Randal]

I have heard zero people say there are no costs, not even Ilya. What a weird thing to suggest.

[questioner7]

"“jurisdiction” here does not simply mean subject to laws, instead it means a “full and complete” jurisdiction in a sense that excludes those subject to a foreign power" -- people can easily be "subject to" more than one jurisdiction at once, e.g. to both federal and state laws. The U.S. permits dual citizenship with a number of countries -- do children of dual citizens not get birthright U.S. citizenship?

[MatthewSlyfield]

"The U.S. permits dual citizenship with a number of countries"
Not really, the reality is that US law couldn't prohibit dual citizenship (with any other country) even if we wanted it to.

The required verbal renunciation of foreign citizenship in the US naturalization process has no legal affect on the new citizen's foreign citizenship.

[M L]

Dual citizenship presents its own issues, and it seems to be incompatible with the concepts of citizenship that applied at the founding, and at the enactment of the 14th amendment, and all the way up until the 1960s.

But the dual citizenship issue illustrates the problem with modern interpretation of the citizenship clause. If anyone born on US soil gets citizenship, with or without consent of the US, and regardless of whether the mother is lawfully present with the consent of the US, then how could dual citizenship NOT be allowed? By what mechanism is that person deprived of some other citizenship? On the other hand if the correct model of US citizenship based on mutual consent is adopted, then a requirement of renouncing other citizenships is possible.

To your question, children of dual citizens do get US citizenship, as a matter of practice. What the US chooses to do as a matter of policy is a different question than that what the US is required to do by the constitution.

This Senate Bill introduced by Harry Reid in 1993 is very apropos and is useful for understanding precisely how a correct understanding of the citizenship clause could (and should in my view) be adopted by Congress. Scroll down to Article X.

https://www.congress.gov/bill/103rd-congress/senate-bill/1351/text

In the exercise of its powers under section 5 of the Fourteenth
Article of Amendment to the Constitution of the United States, the
Congress has determined and hereby declares that any person born after
the date of enactment of this title to a mother who is neither a
citizen of the United States nor admitted to the United States as a
lawful permanent resident, and which person is a national or citizen of
another country of which either of his or her natural parents is a
national or citizen, or is entitled upon application to become a
national or citizen of such country, shall be considered as born
subject to the jurisdiction of that foreign country and not subject to
the jurisdiction of the United States within the meaning of section 1
of such Article and shall therefore not be a citizen of the United
States or of any State solely by reason of physical presence within the
United States at the moment of birth.

[Randal]

The giveaway that this law would never be found constitutional is the "within the meaning of section 1" language, which is a lame attempt to keep the person subject to the jurisdiction of the United States for all other purposes... like arrest and deportation, for instance.

That doesn't work. They're either subject to our jurisdiction or not.

[MatthewSlyfield]

"Dual citizenship presents its own issues"

Dual citizenship is inevitable as long as any path for any immigrant, including legal immigrants, to become citizens exists. There is simply nothing US law can do to effectively revoke a naturalized citizen's foreign citizenship.

The idea that the US (or any other nation) can effectively prohibit dual citizenship is pure fantasy.

[M L]

No.

British subjectship, a holdover of feudalism, was according to Blackstone “intrinsic” and “a debt of gratitude; which cannot be forfeited, cancelled, or altered.”

And yet the founders rebelled against the concept and did just that. And they henceforth adopted a different concept, that of republican citizenship, based on consent. As James Wilson put it, “Under the Constitution of the United States there are citizens, but no subjects.” The distinction lies in the consent of the governed. So Americans were free to renounce their citizenship, and accordingly, the US permitted foreigners to renounce other allegiances and become American citizens, at least barring any treaty to the contrary.

“There is simply nothing US law can do to effectively revoke a naturalized citizen’s foreign citizenship.”

The US can require it to be renounced as a condition of US citizenship, and treat it as such going forward.

“The idea that the US (or any other nation) can effectively prohibit dual citizenship is pure fantasy.”

And yet that’s what the US did for 200 years. Maybe you will argue about how “effective” that is in the eyes of other governments, but that’s sort of beside the point, and it can be addressed by treaties. Otherwise your point is like saying no nation can control what other nations say and do and legislate, which is trivially true.

[Randal]

The US can require it to be renounced as a condition of US citizenship, and treat it as such going forward.

Maybe in theory…? But not in practice. It would empower other countries to prevent us from accepting their citizens as citizens.

[Brett Bellmore]

No, it wouldn't. It would simply mean that, under US law, those other countries' claims against newly minted US citizens would be treated as void. We would accept for purposes of our own law that the renunciation was valid, regardless of what their country of origin thought.

[Randal]

a) Like what things? I can’t think of any such things where foreign citizenship would interfere with US domestic government functions in the first place.

They might pay foreign taxes and have foreign assets and certainly will have a foreign passport that they could use outside the US, including to live in their other home country as much as they want. In what way does it matter, in practice, that the US treats the renunciation as valid, if the rest of the world doesn’t? After all, Trumbull’s quote (allegedly) turns on the actual relationship between the person and the rest of the world, not the pretend one. If the US is willing to close its eyes to foreign allegiances, why even require the fake renunciation?

b) Even if there are ways that foreign law impacts US government operations with respect to dual citizens, it's not clear to me — because I don’t know what they are — that the US can simply flout them in practice. For example, if we have an extradition treaty for citizens only (is that a thing? I dunno), we wouldn’t be able to ignore extradition requests based on a fake renunciation. That would render the treaty a dead letter.

My instinct is that pretty much any reason that a foreign government might interact with the US government on behalf of one of its citizens would be treated similarly. That it, the US government generally isn’t in a position to tell foreign governments who is or isn’t a citizen of theirs.

[David Nieporent]

The US can require it to be renounced as a condition of US citizenship, and treat it as such going forward.

The US can require that a naturalizing citizen declare that he is renouncing foreign citizenship. But it cannot actually make that declaration effective, as whether it is such is a question of the foreign country's law. A country may say, "Once a citizen, always a citizen." In that case, the naturalizing citizen would become a dual citizen, whether he wants to or not.

[Brett Bellmore]

It actually can make that declaration effective, for purposes of domestic law. Which wouldn't protect the new citizen if they traveled to someplace within the jurisdiction of another country, of course, but so long as they stayed in US jurisdiction they could thumb their noses at their old government.

[David Nieporent]

It actually can make that declaration effective, for purposes of domestic law.

Not according to the misinterpretation of Trumbull cited in this thread; as foreign citizens those people would owe some allegiance to a foreign government.

[bernard11]

Trumbull, huh? What 's he doing here? I didn’t think he had a lot to do with the Amendment or the debates around the Citizenship Clause.

Was that quote from the debates around the Civil Rights Act of 1866? You don’t say.

Anyway, one of your heroes, James Ho, has quite a bit to say about the issue. There’s a pdf you can find here

Some quotes:

text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including illegal aliens.

...when we speak of a person who is subject to our jurisdiction, we do not limit ourselves to only those who have sworn allegiance to the U.S. ... Nor is being “subject to the jurisdiction” of the U.S. limited to those who have always complied with U.S. law. Criminals cannot immunize themselves from prosecution by violating Title 18. Likewise, aliens cannot immunize themselves from U.S. law by entering our country in violation of Title 8. Indeed, illegal aliens are such because they are subject to U.S. law.

Most telling, Ho points out that during the debate on the Amendment, supporters and opponents agreed that it conferred citizenship on the American-born children of

people who … owe [my state] no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own …; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him.

Indeed, Cowan, who made the above statement, opposed the 14th precisely because he understood that it would create birthright citizenship.

So much for your "irrefutably proven." The meaning of the phrase was accepted on both sides, and it wasn't what you think it was.

[M L]

“Trumbull, huh? What ‘s he doing here? ”

Trumbull was one of the major participants in the discussion of the citizenship clause . . . which you apparently haven’t read.

“Was that quote from the debates around the Civil Rights Act of 1866? You don’t say.”

No. The 1866 CRA did not even include the language, “subject to the jurisdiction thereof.” You would know that if you had any familiarity with this issue.

Instead of that phrase, the 1866 CRA said “not subject to any foreign power” and “excluding Indians not taxed.” The citizenship clause was supposed to be “simply declaratory” of the current law (in the words of Howard). It was supposed to constitutionalize that provision of the CRA. The discussion explains that the drafters considered “subject to the jurisdiction thereof” to be a better way of saying the same thing as the CRA.

I have read many opinions about the citizenship clause, including James Ho’s. I don’t see how his opinion can be squared with a straight forward reading of the Congressional debates. For one thing, the main point of the citizenship clause was to provide citizenship to freed persons, and to constitutionalize that provision so that it could not be changed by Congress. This is frequently glossed over by arguments like Ho’s which is echoed by Somina above, which suppose that there is no daylight between those who are already US citizens and those who are subject to a foreign power. That ignores the huge no man’s land of freed persons who were the main object of the citizenship clause.

The exchange between Cowan and Conness is actually quite instructive. Permit me to quote this article which explains it. https://claremontreviewofbooks.com/digital/birthright-citizenship/

Cowan asked, as Chavez rightly points out, whether the Citizenship Clause would provide automatic citizenship to the children of Chinese and Gypsy immigrants residing in California and Pennsylvania, respectively, expecting that his question would derail the amendment. But she overlooks a crucial piece of Conness’s response, for he began with a statement that he failed to see the relevance of Cowan’s question to the Citizenship Clause. Cowan, you see, was not asking a question about illegal immigrants or others who retained an allegiance to a foreign power; he was making a racist assertion that, effectively, only white Europeans should be allowed to be citizens. Conness rightly rejected that contention. Our citizenship rule was to apply to anyone who was lawfully and permanently in the United States, but his response does not in any way suggest—because Cowan’s question did not present the issue—that temporary sojourners, who still owed allegiance to a foreign power, could unilaterally bestow U.S. citizenship on their offspring. Indeed, the final part of Cowan’s question itself recognized the distinction I am drawing: ““Have [the children of Chinese or Gypsies] any more rights than a sojourner in the United States?” Conness’s answer was a definite “yes.” Both have “more rights than a sojourner in the United States.” Anyone completely subject to the jurisdiction of the United States, no matter what their ethnic background or nation of origin, is entitled to the benefits of the Citizenship Clause. Temporary visitors, on the other hand—sojourners who are here legally and certainly those who are here illegally—are not.

Conness’ response to Cowan was perfect. Cowan basically went on an irrelevant rant about Chinese and Gypsies, and Conness responded that he failed to see how any of that was relevant. I thought the same thing as I was reading it.

[Josh R]

Accepting for the sake of argument that "complete jurisdiction" of the parents is required for bithright citizenship, and "complete jurisdiction" means not owing allegiance to anybody else, why is it that the children of green card holders get birthright citinzship?

[M L]

Because the US decided in the 1960s to start granting citizenship to anyone born on US soil.

[Josh R]

You missed my point. Trumbull said the children of German citizens born in Pennsylvania are US citizens at birth. How did Trumbull reach that conclusion given his earlier statement on “not owing allegiance to anybody else.”

[David Nieporent]

Because the US decided in the 1960s to start granting citizenship to anyone born on US soil.

You mean the 1770s. Birthright citizenship was always U.S. law. Only in Dred Scott was that basic principle abrogated (in part). And the 14th amendment overturned Dred Scott, and Wong Kim Ark merely confirmed it.

[bernard11]

I confess to not having previously read the entire debate in the Senate. I now have, and find it informative. It is true that that M.L.'s quote from Trumbull was part of that debate. My mistake.

But M.L. makes a bigger mistake (I'll be kind and call it an inadvertent error.)

Here is the quote in context:

What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. 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?

IOW he was referring to a discussion of how the provision treats Indians, not the children of foreigners. There was some earlier discussion of the children of aliens, mainly about Chinese and Gypsies. There does not seem to be the unanimity M.L. alleges on this, but in any case much of the discussion focuses on Indians.

Your "simple argument" is BS.

[bernard11]

You haven’t addressed anything remotely resembling the actual counterargument here. The counterargument is, first, that “jurisdiction” here does not simply mean subject to laws, instead it means a “full and complete” jurisdiction in a sense that excludes those subject to a foreign power

You have not made a counterargument. Arguments, and counterarguments, normally involve facts, logic, data, and so on. You are entitled to your opinion, but not to call it an argument, even though you threw in that irrelevant quote.

[M L]

It's not my fault if you can't follow a simple argument. Which quote do you think is irrelevant?

[Sarcastr0]

Simple argument, says the guy putting in tons of sweaty argumentation to as many anti-birthright citizenship arguments as he can rationalize, no matter how janky.

Flouncing away, after you did all that work?

[windycityattorney]

I think we are stuck with the few examples of when someone is born here but not subject to the 'jurisdiction' of the US. 1) children of diplomats 2) children of various indian tribes that are independently sovereign 3) children of foreign soldiers during hostilities in territory held by the foreign invaders.

As you would likely note, the vast majority of birth right citizenship cases do not fall under one of the 3 exceptions above. So for your run of the mill child born to undocumented parents on US soil, the 14th amend's plain language controls. Those children are citizens of the US.

If you don't like the result, amend the constitution.

[Greg J]

Just for one example, Trumbull said, “What do we mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.”

Wise of you to not post your brain dead trash of a "comment" as a comment to the one immediately above you. Since it shows that you're completely full of sh!t

[Stupid Government Tricks]

Do you do anything but insults? No one you've responded to here has insulted you.

Sounds to me like someone with an empty corral thinking that insulting the cowboys riding past will somehow magically convince them to turn over the reins and start walking.

[ducksalad]

Trumbull's opinion is only that.

[GKHoff]

Or maybe it's a strong indication of original intent.

[MatthewSlyfield]

Only of Trumbull's intent, not the intent of the hundreds of other members of Congress.

[M L]

All the ones who spoke up during the ratification discussion agreed with Trumbull, including Howard, the author of the clause.

[Randal]

You seem to be leaning really hard on this one Trumbull quote, but as questioner7 pointed out, it makes no sense. It would imply that dual citizens' children aren't citizens. Which is obviously stupid.

But it's obviously stupid on its face anyway. "Subject to the jurisdiction of the United States" is wholly dissimilar from "not owing allegiance to anybody else." Who knows what Trumbull was talking about, maybe this is an out-of-context quote, maybe it's incoherent rambling. Certainly not something to bet your xenophobia on.

[Brett Bellmore]

You know how your race card got revoked a few years back? Your xenophobia card got revoked a few weeks ago, too. The polls now show that the majority of Americans DO want deportations.

So cry "Xenophobia!" all you want, it's not getting you a thing.

That's the price of Biden throwing the border wide open for several years. If he hadn't done that you'd probably be looking at President Harris right now.

[M L]

Pick any quote out of the entire ratification debate. It all supports the same position.

[Bob from Ohio]

"If you don’t like the result, amend the constitution."

Just need 5 votes on SCOTUS to change the result.

[bernard11]

Yup. With the court we have today it's a pretty trivial matter if Trump says so.

[windycityattorney]

I am sorry. Are you suggesting that the textualist and originalist majority members of the US SUP CT would overrule their own precedent and the plain language of the 14th amendment to reach a politically desired outcome??

Why I think the GOP has a term for those type of judges. "Activist."

[Ghost of Patrick Henry]

What precedent? Cite?

[David Nieporent]

Wong Kim Ark.

[MatthewSlyfield]

https://www.oyez.org/cases/1850-1900/169us649
United States v. Wong Kim Ark
Decided in 1898, just 3 decades after the 14th Amendment was ratified.

[Bob from Ohio]

“Activist.”

Oh, is that bad now?

[GKHoff]

Or the correct result could be that the key phrase means just what Trumbull said it means. Then you'd need 5 SCOTUS votes to change it to something else.

[MatthewSlyfield]

Trumbull's opinion on what the citizenship clause means was rejected by SCOTUS in 1898.

https://www.oyez.org/cases/1850-1900/169us649

[GKHoff]

It was not. That case involved a legal resident alien, not illegal entrants.

[Josh R]

"Not owing allegiance to anybody else" would preculde birthright citizneship to the children of legal resident aliens.

[cannpro]

I think technically #3 applies to anyone born in occupied territories, not just children of soldiers.

[Brett Bellmore]

So, what is the common thread between diplomats, members of independently sovereign tribes, and foreign soldiers?

They all owe their allegiance to a different sovereign than ours, and have not relinquished that allegiance.

As I said above, I don't think this is the best reading of the birthright clause, but given how much worse readings have prevailed for other clauses, (Interstate Commerce clause, for instance.) it's scarcely frivolous, either.

So, anyway, what happens if the Trump administration recognizes the sovereignty of the Honduran Tribe, the Venezuelan Tribe, the Panamanian Tribe, and so forth? And then argues that the "Indians not taxed" exception applies to illegal aliens?

[windycityattorney]

I think you will find that the Indian tribes people were thinking about in the 14th amendment context had actual treaties with the US and already occupied land in the US/territories pre-dating the US Constitution. Certainly pre-dating the 14th amendment.

I am not so sure the executive branch can simply make up 'tribes' declare non consenting parties (or people yet to be born) to be a part of it, then fashion legal ramifications to the unilateral decision. Because regardless of anything else the racist idiots in these comments come up with; there is separate US precedent that "people" are entitled to due process of law.

What Trump is talking about - not issuing social security numbers or passports to babies - in an effort to deny them birthright citizenship is going to run into that whole due process problem. I imagine any honest court would laugh the DOJ out of court if this is the genius move they employ to enforce it without amending the constitution.

[ducksalad]

So, anyway, what happens if the Trump administration recognizes the sovereignty of the Honduran Tribe, the Venezuelan Tribe, the Panamanian Tribe, and so forth? And then argues that the “Indians not taxed” exception applies to illegal aliens?

Actually, this is the least bad of your arguments. He could grant them and their children diplomatic immunity, and then their children (after the decree) would not be citizens.

Of course, they’d also have diplomatic immunity and the police would have to be warned not to arrest them if they decided to do some crime.

The way the US gets rid of unwanted diplomats is by threatening to withdraw their immunity and subject them to regular deportation proceedings or even criminal charges. But then if any kids are born during the deportation proceedings or pretrial period they’re citizens.

The timing would have to be finessed quite carefully and will never get everyone. I don’t think you fully thought this one out.

[Brett Bellmore]

That's about what I was envisioning: The diplomatic immunity as a get out of jail card that's only good for one play, because the moment you use it you're stripped of it and tossed onto a plane headed home. Good luck having an anchor baby in that several hour interval.

[Sarcastr0]

Stupid formalism gets you stupid rituals so you can ignore the actual law.

In reality magical janky plans to create weird exceptions to the function of the law aren’t how we roll.

You are working very hard to ignore the Constitution and get the outcome you want.
Your yelling about following the Constitution rings pretty hollow before this nonsense.

[Randal]

So, what is the common thread between diplomats, members of independently sovereign tribes, and foreign soldiers?

They all owe their allegiance to a different sovereign than ours, and have not relinquished that allegiance.

No, that’s not the common thread. That’s way too over-inclusive. It includes all foreigners including dual citizens! Lol. Come on, Brett.

The common thread is exactly what the Amendment says: they aren’t subject to the jurisdiction of the United States. Diplomats because they enjoy diplomatic immunity, members of sovereign tribes because they’re exempt from federal control, and foreign soldiers in occupied areas because the US doesn’t control occupied areas.

[TheAmazingEmu]

The other common thread is they weren't subject to the laws of the United States.

However, it doesn't follow that illegal aliens owe allegiance to a different sovereign any more than any other immigrant. If anything, they would owe less allegiance since they are fleeing from those countries. So I don't think the use of the word "illegal" adds anything to your argument. But if you remove it, your argument is directly contracted by over 100 years of jurisprudence.

[bernard11]

what happens if the Trump administration recognizes the sovereignty of the Honduran Tribe, the Venezuelan Tribe, the Panamanian Tribe, and so forth? And then argues that the “Indians not taxed” exception applies to illegal aliens?

Presumably what happens is that they get laughed out of court.

[Dan Schiavetta]

If they're not subject to our jurisdiction, then we have no power to arrest them or jail them.

[John Rohan]

The courts agree that foreign invaders are not subject to our jurisdiction, yet we can arrest and jail them.

[Sarcastr0]

It’s been a while, but IIRC that’s not about criminal law, it’s about war/national defense powers.

[ducksalad]

How do we arrest and jail people in territory controlled by an invading army? We don't.

If the facts on the ground change such that we are able to arrest and jail them, then they have been brought under our jurisdiction and the 14th Amendment instantly kicks in for their children.

The power to arrest and jail them is precisely and exactly what gives their children citizenship. The two things are not separable.

[Bob from Ohio]

"The power to arrest and jail them is precisely and exactly what gives their children citizenship. The two things are not separable."

So everyone born in West Germany from 1945-1949 was a US citizen? Or Japanese born between 1945 and 1952?

[ducksalad]

I thought it was understood we were talking exclusively about people born in the United States, meaning areas both annexed and incorporated.

West Germany and Japan were never annexed. The Philippines and American Samoa were annexed but never incorporated.

[John Rohan]

Sure we do. We capture prisoners in contested territory. Or in territory that is claimed by both sides.

[Frank Drackman]

Hitler and Charles Manson (neither surfed as far as I can tell, or personally killed anyone) were cute Babies too, just sayin

Frank “drooled like a Mongoloid”

[Soronel Haetir]

Not sure what relevance it might have, but you don't accept the evidence that Hitler served during WW1, in fact being wounded during a mustard gas attack?

[Frank Drackman]

Doesn’t mean he killed anyone, and as a Soldier probably wouldn’t be classified as “Murder”

[Bob from Ohio]

"served during WW1"

Hitler was a courier. What's your cite to him personally killing anyone?

[Soronel Haetir]

It was the "never personally served" I was questioning.

[Sarcastr0]

.

[loki13]

To point out the obvious.

1. US vs. Wong Kim Ark was decided much closer to the actual ratification of the Amendment in question. They probably had a much better understanding of what it meant.

2. Moreover, it wasn't exactly like the Chinese were real popular at that time.

3. No one has ever produced any actual evidence that the clause means anything other than what we have all known it to mean.

4. It is only in the last few years that people have advanced a new theory, not based on originalism, or anything, really, other than their feels that they want a different result, to support their crazy ideas for redoing what we all have understood the Constitution (and the 14th Am.) to mean.

5. Normally, this is something that the people on a certain side would be yapping about "just amend the Constitution," but it is remarkable how they shift to living constitutionalism to support their feels when it's really really important to them. And by LC, I don't mean ... you know, actual jurisprudence. I mean, "We want something, so we will make up stuff to support what we want."

Yeah, birthright citizenship is a thing. Maybe it's a bad idea. You are welcome to argue it. But a lot of bad ideas are enshrined in the Constitution.

[Frank Drackman]

So if Obama Bin Laden had managed to hide out in Malibu until 2011, all of the children he fathered there would be Boner-Fide Amurican Citizens? Don’t think so, it’s like trying to argue for faster than light travel, eventually you need the Energy of the entire Universe to prove your point

Frank

[ducksalad]

Actually yes, OBL's children under those conditions would be citizens.

Only an idiot would argue that his OBLs' US born children should be granted diplomatic immunity, exemption from taxes, and Geneva convention rights.

[loki13]

Yep. What ducksalad said.

I mean, we can all think of a parade of horribles. But that’s what we put in the Constitution.*

Take it up with the people who wrote it.

(Also, if Bin Laden had been hiding out in Malibu until 2011, I think that the children he had fathered here would have been the least of the concerns.)

*I mean, did you know that Congress could just declare war on an ally because they feel like, with no check or reason for it? Maybe just one day they say, screw Canada! Just because something seems bad doesn't mean it is unconstitutional.

[David Nieporent]

Surely we should declare war on Denmark so we can seize Greenland.

[MatthewSlyfield]

Why would we want Greenland?

[loki13]

Trump wanted it last time.

[Bob from Ohio]

"Why would we want Greenland?"

Why not? Manifest destiny, baby.

[Frank Drackman]

Only 17 Billion barrels of proved Oil Reserves, since the "Experts" said we'd run out 100 years ago, multiply by 50 for how much is really there.

Frank

[ducksalad]

You never know, global warming and all. Might be decent farmland in century or so.

[Frank Drackman]

and that would be bad why........?????

[Randal]

Well, all that ice covering Greenland will turn into water covering Florida.

and that would be bad why……..?????

Oh now I see your point.

[Randal]

Wow, Frank, Mr. Corruption-of-Blood! Don't tell your kids!

[Frank Drackman]

So I posit that Obama Bin Laden's Amurican born born Chill'un shouldn't be Amurican Citizens, and you go all Blood Libel? I get that John McCain (why is he a Hero? he got shot down, he's a Hero) born in the Canal Zone to Amurican Parents is a Citizen, but not Obama Bin Laden Jr...
OK, and since apparently you still bear a grudge over the whole Crucifixion thang, wasn't that the whole reason your imaginary Surpreme Being came to Earth?? (He's a Man! He's God! He's the Son of God! He's a Ghost!)
So you should be fucking thanking me, although I have more evidence of the Easter Bunny's existence

Frank

[Bob from Ohio]

Plessy v. Ferguson was decided much closer to the actual ratification of the Amendment in question. They probably had a much better understanding of what it meant.

[M L]

Closer than Wong Kim Ark:

“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, 1872

The above is nothing but an extremely straight forward reading of the amendment and the discussions surrounding its enactment.

And that was backed up by Elk v Wilkins, which also came before Wong Kim Ark.

Wong Kim Ark itself applied to a lawful, permanent resident whose parents had "domiciled" (a key word used many times in the opinion) in the US.

Your comment is very ill-informed.

[David Nieporent]

Elk v. Wilkins was about Indians — a separate and sui generis category — and therefore says nothing at all about anyone else.

And note that the Slaughterhouse quote, besides being dicta, doesn't make sense as you're interpreting it. If no children of foreigners were granted citizenship by the 14th amendment, then why on earth would one need to specify "children of ministers, consuls" separately as being excluded, as they would simply be an infinitesimal subset of children of foreigners?

[M L]

Indians may be a sui generis category, but in this case that only makes it all the more useful for illustrating the meaning of the clause. There is a reason that most of the ratification debate focused on this topic. The discussion can be summarized thusly: the full and complete jurisdiction of the US excludes those subject to any foreign power. That much was obvious. But are Indians subject to a foreign power? Yes, if they maintain tribal relations, even though it is a quasi-foreign power, it still counts.

The Slaughterhouse quote makes perfect sense, it is basically lifted right from what the authors of the citizenship clause said it meant. Mentioning children of ministers and consuls may not be logically necessary here, but it's not contradictory either, and they are also a sui generis category in some ways so it makes sense they would be mentioned.

[TheAmazingEmu]

As a factual matter, to the extent that an individual domiciled is relevant, it wouldn't matter in these cases. At most, it would push back against individuals on non-immigrant Visas who lack intent to remain.

[F.D. Wolf]

The operative question is what does the phrase "subject to the jurisdiction thereof" mean in the Citizenship Clause.

The Fourteenth Amendment was intended chiefly to constitutionalize the Civil Rights of 1866, to prevent it from being struck down by the Supreme Court as exceeding Congress' authority. The text of the Citizenship Clause first appears in that Act. Its author was Sen. Lyman Trumbull. What did he say the phrase meant?

The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.

Others in Congress affirmed this understanding. In 1873, Attorney General George Henry Williams, who had been a Senator when the Civil Rights Act and Fourteenth Amendment had been enacted, in an official opinion addressing questions from President Grant, reiterated this understanding:

The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.

(14 Op. Atty-Gen. 296, 300.)

The concept of dual (or multiple) citizenship was explicitly and repeatedly rejected by Congress until the Supreme Court essentially forced its recognition in Afroyim v. Rusk (1967). An alien in the United States remained an alien unless and until he was naturalized. Likewise, the children of such an alien would have the same citizenship of their alien father. The concept of “birthright citizenship” is quite a novel one, a Google Book search suggesting the first appearance of the phrase was in 1982.

[M L]

Exactly - well said.

[M L]

I think Howard was the main author but he said the same thing.

[F.D. Wolf]

In his 2015 congressional testimony during House Judiciary Committee hearings on birthright citizenship, the late law Prof. Lino Graglia stated:

Senators Lyman Trumbull of Illinois and [Jacob] Howard of Ohio, principal authors of the citizenship clause in both the 1866 act and the 14th Amendment, both stated that “subject to the jurisdiction of the United States” means not owing allegiance to anybody else, which, again, seems to clearly preclude birthright citizenship for the children of legal resident aliens and, a fortiori, more so of illegal aliens. It appears, therefore, that the Constitution far from requiring the grant of birthright citizenship to the children of illegal aliens is better understood as denying that grant.

[Josh R]

Again as I stated above, Trumbull also said, "Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens." How do you square those two statements?

[F.D. Wolf]

How do you square them?

One way is the way the Court did in Wong Kim Ark and conclude that the children of legal permanent residents are citizens. But even if one accepts that proposition, it does not necessarily follow that the children of individuals here illegally or those here on temporary visas are citizens.

[Josh R]

The Court did not square the two statements in Wong Kim Ark. They instead only cited the statement I posted. The dissent cited the other statement. The lesson? Stick with text, not what is said in the debates, especially one the same person contradicts himself. So, let’s all ignore what Trumbull said.

You will need to find some other argument for why "subject to the jurisdiction" covers green card holders but not others who reside in the USA.

[F.D. Wolf]

You will need to find some other argument for why “subject to the jurisdiction” covers green card holders but not others who reside in the USA.

I did not make that argument. I was simply recounting the holding of Wong Kim Ark, which I believe was in error.

To be clear, I believe that Congress CAN give the children of green card holders (or illegal aliens, for that matter) citizenship, but is not obliged to. I believe what the Court said in Elk v. Wilkins (1884), "that no one can become a citizen of a nation without its consent", and that there could be no clearer denial of consent than a statutory declaration that an individual is here illegally.

[Josh R]

Firstly, you claimed that Trumbull believed the chidlren of green card holders should not get 14th Amendment birthright citizenship. But that claim is wrong per his other statement. So, let's drop Trumbull.

Secondly, consent (or lack thereof) comes from the plain text of the 14th Amendment without regard to statute. You have to make your argument from the text.

[F.D. Wolf]

I made no such claim about Trumbull. There were no "green card holders" in his time. What does "subject to the jurisdiction" mean? You say "stick to the text" but provide no evidence that the text means what you (presumably) think it means.

So, we have the evidence of what the author of the phrase says it means. "Not owing allegiance to anybody else. That is what it means."

But, alas, he contradicted himself, you say. Did he? "Is not the child born in this country of German parents a citizen?"

The first quote speaks directly to the interpretation of the Citizenship Clause in the 14th Amendment. The second, spoken in the context of the debates over the Civil Rights Bill of 1866, speaks to Trumbull's view of the law as it currently stood, BEFORE it became a law and before there was even a proposed 14th Amendment. In other words, the first quote goes directly to the question at hand (interpretation of the Citizenship Clause), while the second quote does not.

There is also the official opinion of the Attorney General in 1873, a man who was in the Senate when both the Civil Rights Act and Fourteenth Amendment were passed.

The Act itself began, "[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." Is there any confusion about what the bolded text means? Granted, this was changed to "and subject to the jurisdiction thereof" in the Amendment, but is there any evidence to suggest a different intended meaning?

You have endeavored to poke hole in my evidence of the proper interpretation of the Citizenship Clause, but have offered none of your own to support your reading of the Clause.

[Josh R]

The second, spoken in the context of the debates over the Civil Rights Bill of 1866, speaks to Trumbull’s view of the law as it currently stood.

Are you arguing Trumbull merely summarized the state of the law before the Civil Rights Act and believed the Act would no longer confer citizenship on the children of Germans residing in Pennsylvania. I think not.

Trumbull was replying to Senator Cowan’s question, “I will ask whether it [the Civil Rights Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” to which Trumbull replied “Undoubtedly.” Thus, Trumbull was saying what the (common) law was prior to the Civil Rights Act, and the that the Act would formalize that common law.

Again, my point being, ignore Trumbull. In fact, channel your inner Scalia, and ignore the entire debate. Start with the text. If it is clear, that ends the debate. If it is not, look to historical practice. Based on the latter, “subject to the jurisdiction” means the USA (and the states) have full jurisdiction over your actions (so Indians not taxed and diplomats are excluded). That determination does not depend on whether the person owes allegiance to another country. A non-citizen residing in the USA is fully subject to our laws.

[Randal]

is there any evidence to suggest a different intended meaning?

Generally, yes, changing the text is itself evidence, pretty strong evidence actually, of intent to change the meaning.

Trumbull’s view of the law as it currently stood, BEFORE it became a law and before there was even a proposed 14th Amendment.

So you’re arguing that Trumbull’s feeling was that… birthright citizenship existed before the 14th Amendment — for white people — and the Amendment purported to take it away from white people while giving it to Black people?

Hahaha lol you really are willing to suggest some wild ideas in order to get to your preferred outcome on this.

Is there any evidence that, after the enactment of the 14th Amendment, Pennsylvanian Germans stopped being born citizens?

[Randal]

The 14th Amendment is that consent, and Congress can't override the Constitution.

I'm kind of surprised you aren't making the argument that the 14th Amendment isn't self-executing, so no one gets citizenship without enabling legislation. I'm glad you aren't, because it would be a shame to dismantle the Constitution one clause at a time by subjecting it to the whims of Congress.

[Randal]

The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment... Political and military rights and duties do not pertain to [Aliens].

This is dumb and circular. It describes citizens. Only citizens have "political and military rights and duties" "such as [those of] citizens."

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

If only citizens are subject to the jurisdiction of the United States, then this is a meaningless clause. If newborns are citizens, then they're subject to our jurisdiction. If they're not citizens, then they're not. What a retarded way to read the 14th Amendment.

[cannpro]

All the lunatics on here claiming birthright citizenship doesn't actually exist are just recycling the same old arguments that have been unanimously rejected by the courts since in every single case except one – the Dredd Scott decision – a case the 14th amendment was enacted to overturn. It’s sad they really think they’ve discovered something new.

[loki13]

Worse, they are ignoring the fact that multiple federal courts had found the same thing prior to the Supreme Court's opinion. And, again, this was much closer in time to the actual passage!

I love "originalism." Because we want a different meaning, we will simply ignore what people at the time said was the meaning. And we will find cherrypicked quotes that ignore the overall context, the multiple decisions, and more than a hundred years. Because ... reasons.

[Josh R]

I was not aware of the lower court decisions. Can you provide more detail?

[M L]

“Because we want a different meaning, we will simply ignore what people at the time said was the meaning. And we will find cherrypicked quotes that ignore the overall context, the multiple decisions, and more than a hundred years. Because … reasons.”

Yes…except it’s the other side of this issue that’s doing exactly this here.

[Sarcastr0]

ML you are the one working so so hard to insist the Constitution actually agrees with you not what everyone else thinks it means.

[Roger S]

We now have an invasion of millions of illegals. Maybe those courts thought that they were doing something nice for a few isolated cases. Now it is millions, and something needs to be done.

[Randal]

Now it is millions, and something needs to be done.

And you think that something is to ignore the plain text of the Constitution. You guys are pathetically transparent with your fair-weather originalism. Go suck a sock.

[Roger S]

No, I am saying to reconsider those court decisions that seem to imply birthright citizenship for everyone.

[Randal]

... in order to get the outcome you want. Because "something needs to be done." How's that sock tasting?

[Roger S]

The Constitution is not a suicide pact.

[Randal]

Hahahaha oh man what a sad case you are. Repeating random phrases you've heard before as cover for your raw, unconstitutional xenophobia.

"The Constitution is not a suicide pact" doesn't make a smidgeon of sense in the context of a right that's been around for 125 years and we haven't committed suicide yet. This pact has a 125-year duration? I think if we've been able to live with it for 125 years we'll be able to find a way to muddle through without everybody killing ourselves. In fact, I hear that the Democrats had a number of immigration bills that would have solved this problem relatively simply, but the Republicans scuttled them all.

[Roger S]

The Democrat bills only solve the problem by importing more illegals and making them legal. We have not had a court ruling that is directly on point with anchor babies.

[Randal]

It's interesting to consider some alternative formulations of the Amendment in light of its purpose.

Imagine it didn't include "born or naturalized" and just said

All persons subject to the jurisdiction of the United States are citizens thereof and of the State wherein they reside.

Under the right-wing interpretation favored by the likes of M L, Roger, and Wolf, there's essentially no change. The class of citizens and the class of persons subject to the jurisdiction of the United States are identical, so "born or naturalized" is surplusage.

Under the interpretation favored by the rest of us and SCOTUS, this would be intensely overbroad. Almost everyone entering the US would automatically become a citizen. So for us, the "born or naturalized" is doing real work.

What work? Well, "naturalized" is clear. It suggests that there's a formal step to becoming a citizen. This implies a class of people that are subject to the jurisdiction of the United States but aren't yet citizens. The fact that the right-wing interpretation doesn't allow for such people is telling, since the Amendment clearly does.

So what of "born?" It's there to prevent the above class of jurisdictional non-citizens from turning into a permanent underclass. That was a real problem with the emancipation of slaves -- without being explicit about it, there was no other legal process by which slaves' children could be considered to have been naturalized.

But this problem isn't specific to slavery. Imagine if immigrants' children didn't get citizenship. There would be an ever-growing class of non-citizen permanent residents of uncertain legal status, ready to be unfairly exploited politically and economically. It's not a class of people that could ever realistically be deported. That's a pipe dream. Where would you even deport them to? They have no country of origin other than the United States.

Hopefully those of us on the correct side of this issue will get smart about tarring the rest of you as attempting to manufacture a return to "slavery lite," complete with a permanent, growing population of second-class brown people for you to subjugate.

[Roger S]

The Black slaves were lawfully in the USA, and not affiliated with any foreign country. Anchor babies present a different issue.

Most countries do not have birthright citizenship. Some have even abolished it. You act as if abolishing birthright citizenship would shock the conscience, but countries have done it and been happy about it.

[Randal]

Other countries do lots of things that are very un-American -- including and especially taking steps to cultivate an exploitable underclass.

[cannpro]

The issue isn’t whether birthright citizenship should be abolished. The issue is whether it’s in the constitution, which it very much is. If you want to abolish it an amendment is needed. Things you don’t like about the constitution don’t just go away because you don’t agree with it.

[JoeFromtheBronx]

Dred Scott v. Sandford was not an idiosyncratic ruling regarding birthright citizenship.

There was a common understanding, if disputed, that black people were not federal citizens. Or, more particularly, states had the right to deny them citizenship & as a result, they were not federal citizens. That is how Benjamin Curtis framed it. McLean's dissent was more open-ended about the lack of a racial bar.

Or, to be more specific, to quote Curtis, "whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States."

Curtis noted: "At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens."

He didn't argue that any African descendant of slaves could be a citizen, no matter the place of their birth on U.S. soil.

The 14th Amendment set forth a universal national birthright citizenship rule. There was a constitutional right to federal citizenship by birth on U.S. soil & state citizenship by residence.

[Crossdraw]

But ... children born of diplomats etc. are denied US citizenship by statute.

Then why can't similar denials of citizenship be laid against illegals or even legals, tourists, etc.?

[Randal]

Diplomats are not subject to the jurisdiction of the US. If we wanted to treat immigrants like diplomats, they'd also be immune from arrest.

[Randal]

Even if we were to make the unlikely decision to overturn 125 years of precedent and decide that Trumbull’s quote controls, illegal immigrants are probably one of two classes of aliens (the other being dual citizens) who still get a constitutional guarantee of birthright citizenship.

Let’s look at AG Williams’s quote, since Trumbull’s has already been analyzed above to show that illegal aliens in fact owe no allegiance to anybody else (in much the same way as dual citizens, who have at least nominally renounced such allegiance). Similarly:

The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens… are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.

But… political and military rights and duties do pertain to illegal immigrants, at least from the Constitution’s perspective. Nothing in the Constitution prevents them from voting for President, Senator, or Representative, or from serving in the military. Maybe you could argue that the 14th Amendment itself withholds some rights from illegal aliens, but you’d be hard pressed I think to identify what they actually are.

When people come to the US legally, those very laws and customs, e.g. visas and the like, are the indicators of foreign allegiance and the source of protection against “complete” US jurisdiction. Illegal immigrants, like dual citizens, lack such protections. We’re free to make them all pay taxes, give them all the vote, and conscript them into the military… if we want to. Unlike, for example, foreign visitors on tourist visas.

This is all especially true of the children of illegal immigrants. In fact, it must be true, precisely because we give them citizenship. We wouldn’t be able to just conscript random Argentinians into our army by calling them citizens. It only works with children of illegal immigrants because there’s no practical sense in which they are Argentinian.

[Roger S]

The children of illegal aliens can often claim citizenship in the nation of their parents.

[Randal]

So? Lots of people can claim citizenship in lots of places. Anyone can become a US citizen, for example.

[It's only a paper moon, Nominalists]

So a couple minutes before birth into citzenship you can dismember and kill the baby -- because under our Constitution the baby has the right to be murdered ?????
Read the "posterity' argument against your point

https://scholarship.law.edu/cgi/viewcontent.cgi?article=1874&context=scholar

[Patrick Henry, the 2nd]

Sorry Illllllllllllya. It's entirely constitutional and you are a bad lawyer.