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The traditional case against including children of aliens in the Citizenship Clause
(Note: Since initially posting this blog entry on Monday I have revised it, making the language and arguments more clear and precise. If only the Framers of the Fourteenth Amendment had done the same.)
Following up on my discussion of the Meese-Eastman amicus curiae brief attacking automatic birthright citizenship for children of legal and illegal aliens, Robert B. quotes from several forceful judicial opinions in the past that back up the Meese-Eastman view. I reply that the language of the Clause when looked at by itself is, unfortunately, not absolutely determinative in rejecting birthright citizenship. What is absolutely determinative is the stated intentions of the legislators who framed the Amendment, and the answer to the hypothetical, originalist question: would reasonable persons living at the time of ratification have thought that the Amendment gave automatic citizenship to the children of aliens?
Robert B. writes:
In the case formally known as “The Slaughterhouse Cases,” we have the only definition needed for “jurisdiction and control”:
“The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship—not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether [83 U.S. 36, 73] this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.
To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
The last says it all. They are citizens of another nation, ergo, they are not under the jurisdiction and control of the U.S. government. I have never understood why this last is so hard for people today to understand.
Robert B. continues:
Chief Justice Fuller and Justice Harlan, dissenting in part in Wong, quote approvingly from Elk v. Wilkins, 112 U.S. 101 :
“By the thirteenth amendment of the constitution, slavery was prohibited. The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes (Scott v. Sandford, 19 How. 393); and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States, and of the state in which they reside (Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U.S. 303 , 306).
“This section contemplates two sources of citizenship, and two sources only,-birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” 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. And the words relate to the time of birth in the one case, as they do [169 U.S. 649, 725] to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the timeo f birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.”
Fuller and Harlan continued:
To be “completely subject” to the political jurisdiction of the United States is to be in no respect or degree subject to the political jurisdiction of any other government.
Now, I take it that the children of aliens, whose parents have not only not renounced their allegiance to their native country, but are forbidden by its system of government, as well as by its positive laws, from doing so, and are not permitted to acquire another citizenship by the laws of the country into which they come, must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country.
Generally speaking, I understand the subjects of the emperor of China—that ancient empire, with its history of thousands of years, and its unbroken continuity in belief, traditions, and government, in spite of revolutions and changes of dynasty—to be bound to him by every conception of duty and by every principle of their religion, of which filial piety is the first and greatest commandment; and formerly, perhaps still, their penal laws denounced the severest penalties on those who renounced their country and allegiance, and their abettors, and, in effect, held the relatives at home of Chinese in foreign lands as hostages for their loyalty. 2 And, [169 U.S. 649, 726] whatever concession may have been made by treaty in the direction of admitting the right of expatriation in some sense, they seem in the United States to have remained pilgrims and sojourners as all their fathers were. 149 U.S. 717 , 13 Sup. Ct. 1016. At all events, they have never been allowed by our laws to acquire our nationality, and, except in sporadic instances, do not appear ever to have desired to do so.
The fourteenth amendment was not designed to accord citizenship to persons so situated, and to cut off the legislative power from dealing with the subject.
The right of a nation to expel or deport foreigners who have not been naturalized or taken any steps towards becoming citizens of a country is as absolute and unqualified as the right to prohibit and prevent their entrance into the county. 149 U.S. 707 , 13 Sup. Ct. 1016.”
LA replies:
All very interesting. However, though I’m not happy to say this, I think that the meaning of “subject to the jurisdiction of the United States” is not as straightforward as Robert B. and Chief Justice Fuller say it is. Following Robert B. and Fuller, we’re supposed to believe that “subject to the jurisdiction” means “subject to the complete and total jurisdiction” (meaning that the person has no connection with any foreign jurisdiction), not to, oh, the ordinary and incomplete jurisdiction (meaning that the person is a foreigner who is simply living here). What is the basis for finding such a distinction in the language of the Amendment? And in what sense is a legal resident alien in the U.S. not subject to the jurisdiction of the U.S.? He has to obey our laws, and if he doesn’t, he can be charged and punished. During the Civil War, recent immigrants, though they were not yet citizens, were enlisted in the Union Army where many died. If that’s not being “subject to the jurisdiction” of the United States, nothing is. So it is possible for a person to be subject to the jurisdiction of the U.S. even if some foreign power has a higher and pre-eminent jurisdiction over him.
Now, it might be argued that this intepretation would render “subject to the jurisdiction” redundant, since the interpretation is saying that all people born in the U.S. are by definition under the jurisdiction thereof. My reply is that children of diplomats would still be excluded by the language, because diplomats really are not subject to our jurisdiction. Therefore there is a reasonable way of understanding the Clause in which the “subject to the jurisdiction” provision is non-redundant, since it would exclude diplomats, yet at the same time the provision would not exclude ordinary legal aliens and illegal aliens. In short, if we look just at the language of the Clause itself, the Fuller-Harlan interpretation is not the only possible reasonable reading of the Clause. Therefore a more solid basis must be found for rejecting birthright citizenship.
The basic problem with the language of the Clause and Fuller’s reliance on it is brought out when he says that “subject to the jurisdiction” means that the person is not subject to any other jurisdiction, i.e., that the person is not a citizen or a subject of a foreign sovereign, and therefore the phrase “subject to the jurisdiction” excludes from citizenship any person who is born of parents who are not U.S. citizens. But if that was the intent of the Amendments’ framers (and, indeed, the legislative history, as explained by Howard Sutherland in a 2001 article at Vdare, shows that it was their intent), why didn’t they say so? They could have phrased the Citizenship Clause something like this:
“All persons born or naturalized in the United States, and not subject to the jurisdiction of any foreign nation, are citizens of the United States…”
Then it would have been crystal clear. Then it would have been understood by everyone that the child of a legal or illegal alien born in the U.S. is not a citizen, because he is born to a mother who is herself the citizen of foreign country and therefore he is a citizen of that country too. And we never would have had birthright citizenship.
Unfortunately, the Amendment was not written in such clear and unambiguous language, but, as in so many places in the Constitution, in damnably vague language, causing untold trouble to the generations that follow. Given the indefiniteness of the language in the Citizenship Clause, I reluctantly conclude that it will never be completely accepted by all people, especially by those who favor open borders, that the Amendment’s language has the narrow meaning that Robert B. and Justices Fuller and Harlan say it has. Therefore, as a practical matter, it will be hard to get rid of birthright citizenship by judicial interpretation, as there will always be liberal judges who will rely on the ambiguous language of the Clause itself and refuse to consider legislative intent and original meaning. We will probably only be able to get rid of birthright citizenship by an act by Congress or a Constitutional amendment.
- end of initial entry -
LA writes:
Here is a bill proposed to this effect in 2001 by Rep. Stump:
A BILL
To clarify the effect on the citizenship of an individual of the individual’s birth in the United States.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. BASIS OF CITIZENSHIP CLARIFIED.
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 Act to a mother who is neither a citizen or national of the United States nor admitted to the United States as a lawful permanent resident, and which person is a citizen or national of another country of which either of his or her natural parents is a citizen or national, or is entitled upon application to become a citizen or national 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 birth in the United States.
Section 5 of the Fourteenth Amendment reads:
Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 5 gives Congress the power to enforce the amendment. It’s not clear that Congress has the power to define or interpret it. Which suggests that only a Constitutional amendment can authoritatively and definitively deliver us from the morass created by the less than pellucid language of the Citizenship Clause. Please understand. I am not happy about calling for an Amendment. It is greatly to be preferred that the Supreme Court itself overturn its expansive interpretation of the Citizenship Clause in Wong. I believe that the Supreme Court should overturn it, if not based on Fuller’s reading of the “subject to the jurisdiction” provision (which in my view, as explained above, is less than absolutely definitive), then based on the originalist argument (which to me is irrefutable) that reasonable persons living at the time of the ratification of the Fourteenth Amendment would have totally rejected the idea that the Citizenship Clause meant that the children of illegal aliens are citizens.
It is also practically preferable that the Supreme Court, rather than the American people by amendment, overturn the Wong interpretation, as this would mean that the vast number of children of illegals in recent decades were given citzenship illegitimately, providing a color of law under which their citizenship could be removed, along with the citizenship of their relatives who received citizenship as a result of the anchor babies’ receiving citizenship. Surely the citizenship of persons who illegally entered this country as part of a foreign invasion aided and abetted by treasonous elites in this country should be removed. However, leaving that question aside for future discussion, the problem is that it is unlikely that the Court will overturn Wong, and, even if it did, the left would surely continue to challenge that outcome through further court cases. Therefore, while I favor efforts through the Supreme Court and the Congress to re-interpret the Citizenship Clause correctly, it seems to me that a Constitutional amendment is the only sure way to resolve the issue. Such an amendment should not be hard to pass. Especially in the aftermath of the nation’s crushing rejection of the Bush-Kennedy amnesty bill, we can expect that an overwhelming majority of the American people would oppose birthright citizenship if the issue were presented to them.
Posted by Lawrence Auster at July 31, 2007 12:19 AM | Send
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