Skip to comments.What "Subject to the Jurisdiction Thereof" Really Means
Posted on 11/26/2008 10:41:16 PM PST by unspun
I have been bombarded lately with requests to revisit the meaning of the Fourteenth Amendments “subject to the jurisdiction thereof” language. Some desire confirmation whether the language simply implies temporary obedience to laws, while others want to confirm whether it requires something more direct and substantial. I’ll spare the reader a lengthy treatise by making this short and to the point.
Perhaps the first most important thing to understand about national birthright is that there was no written national birthright rule until the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution.
One reason for the absence of an early written national birthright rule is that States had decided for themselves who were their citizens by virtue of being born within the limits of the State. Prior to the 14th amendment citizens of the United States were strictly defined as citizens of the States.
After the Revolution, States retained only those portions of common law that were applicable to their local circumstances. In England at the time every person born within the realm of the King was considered a natural born subject under the maxim every man owes natural allegiance where born. This natural allegiance was perpetual and difficult to severe or alter (Once a English subject, always a English subject) and was found odious in this country (America went to war against this “natural allegiance” in 1812) .
The State of Virginia outright rejected the common law doctrine in 1777 when it adopted the following doctrine written by Thomas Jefferson:
[A]ll infants, whenever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise, their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this Commonwealth until they relinquish that character, in manner as hereinafter expressed; and all others not being citizens of any, of the United States of America, shall be deemed aliens.
Addressing a contested South Carolina Election of Rep. William Smith in the House of Representatives in 1794, James Madison said the question of whether Smith had been a citizen of the United States for seven years or not rested entirely with the Constitution of South Carolina. However, South Carolina’s Constitution or laws were silent on the subject, leading Madison to remark: “It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us.”
Generally speaking, when an issue of aliens and citizenship went before the courts it meant some State had neglected to enact laws on the subject, thereby forcing the courts to adjudicate citizenship under old common law rules. This is exactly what happened with the State of New York in 1844, forcing the State later to single out “transient aliens” by statute.
Conceivably, Congress could had from the beginning attempted to include a defined birthright rule under the laws of naturalization - whether due to place of birth or parentage - but would have found, just as the Thirty-Ninth Congress had discovered, to be no simple matter as individual States had differing opinions over who should, or should not, be its citizens.
As a rule, the nation considered only those patriotic immigrants who came here for the exclusive purpose to settling amongst us, bringing with them wealth, like habits and customs as those worthy to become part of our society. And more importantly, those willing to renounce all prior allegiances to their country of origin and swear fidelity to this one. Paupers, vagabonds and imperialist were universally despised.
Imagine for a moment Congress debating during the constitutional convention, or even years following the adoption of the Constitution, a national criterion for establishing citizenship by birth of all persons as practiced under English common law. Firstly, that would have been rejected by a number of States as placing men of color on an equal footing with the Anglo-Saxon race. This in return forcing perhaps an attempt to compromise using the words “free white men,” with that in return being rejected by some northern States as repugnant of the Declaration’s “all men are created equal.”
Moreover, there undoubtedly would been terrible disputes over the fact the nation was attempting to adopt common law as general law, something more than a few considered derogatory. James Madison succinctly illustrates such dilemma to George Washington:
What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & anti-republican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law.
So what was to be the premise behind America’s first and only constitutional birthright declaration in the year 1866? Simply all children born to parents who owed no foreign allegiance were to be citizens of the United States - that is to say - not only must a child be born within the limits of the United States, but born within the complete allegiance of the United States politically and not merely under its laws.
Under Sec. 1992 of U.S. Revised Statutes the same Congress who had adopted the Fourteenth Amendment, confirmed this principle: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.” Thus, the statute can be read as “All persons born in the United States who are not aliens, excluding Indians not taxed, are declared to be citizens of the United States.”
Sen. Trumbull stated during the drafting of the above national birthright law that it was the goal to “make citizens of everybody born in the United States who owe allegiance to the United States.” Obviously he did not have natural allegiance in mind since under common law it did not matter if parents owed allegiance or not prior to their child being born.
Sen. Trumbull felt the words, “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens” would be more than sufficient to fulfill this goal. However, after investigation it was found the United States had no authority to make citizens of those temporarily residing in the United States who owed only a “temporary allegiance.”
Framer of the Fourteenth Amendments first section, John Bingham, said Sec. 1992 of U.S. Revised Statutes meant “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this statute merely reaffirmed the old common law rule of citizenship by birth then the condition of the parents would be entirely irrelevant.
Bingham would go on to argue before the House in 1871 that “Dr. [John Emilio] Houard is a natural-born citizen of the United States there is not room for the shadow of a doubt. He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution, as amended today, he is declared to all the world to be a citizen of the United States by birth.”
During the debates of the Fourteenth Amendment’s citizenship clause, both its primary framers, Sen. Jacob Howard and Sen. Lyman Trumbull listened to concerns of including such persons as Chinese, Mongolians, and Gypsies to citizenship. Additionally, Sen. Fessenden (co-chairman of the Reconstruction Committee) raised the question of persons born of parents from abroad temporarily in this country - an issue he would not have raised if Congress were merely reaffirming the common law doctrine - and of course, the question of Indians.
Sen. Trumbull attempted to assure Senators that Indians were not “subject to the jurisdiction” of the United States. Sen. Johnson argued that Sen. Trumbull was in error in regards to the Indian’s not being under the jurisdiction of the United States. This must have raised concerns with Howard because he strongly made it known that he had no intention whatsoever to confer citizenship upon the Indians under his amendment, no matter if born within or outside of their tribal lands.
In Steel Co. v. Citizens for a Better Environment (1998) the court said “jurisdiction is a word of many, too many, meanings.” Therefore, it is important to discover the operational meaning behind “subject to the jurisdiction” as employed under the Fourteenth Amendment rather then assuming its meaning from other usages of the word jurisdiction alone. Both Sen. Trumbull and Sen. Howard provides the answer, with Trumbull declaring:
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.
Sen. Trumbull further added, “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’” Sen. Jacob Howard agreed:
[I] concur entirely with the honorable Senator from Illinois [Trumbull], 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, 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.
What Sen. Howard is saying here is citizenship by birth is established by the jurisdiction which the United States already has over the parents of the child. There is only one avenue for which an alien could come under the complete jurisdiction of the United States: Naturalization.
Again, had it been stipulated among members of Congress that they were merely reaffirming the old common law rule of citizenship by birth then it would be entirely irrelevant whether parents enjoyed the same jurisdiction of United States citizens or whether they might owe allegiance to some other nation
Anyway, the above statements by Howard and Trumbull give us a good idea of what “subject to the jurisdiction thereof” as employed under the Fourteenth Amendment means: Absence of owing any allegiance to any other foreign power, which in return allows the United States to exercise full and complete jurisdiction over the person.
To understand how an alien might not owe allegiance to some other sovereignty after arrival to this country, one need to look no further then the naturalization laws of the United States. Under United States law, an alien was required to make a declaration of his intention to become a citizen, and renounce all allegiance to his former government two years before he could make a final application.
Therefore, it does not require a leap of faith to understand what persons, other than citizens themselves, under the Fourteenth Amendment are citizens of the United States by birth: Those aliens who have come with the intent to become U.S. citizens, who had first complied with the laws of naturalization in declaring their intent and renounce all prior allegiances.
Sen. Trumbull further restates the the goal of the language: “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens…” Note that Trumbull does not say temporarily within our jurisdiction, but completely within our jurisdiction.
He of course is talking about the laws of naturalization and consent to expatriation by the immigrant in order for him to come completely within the jurisdiction of the United States and its laws, i.e., he cannot be a subject of another nation. Without this full and complete jurisdiction, any foreign government can intervene on behalf of their own citizens while they visit or reside within the United States - just as the United States is known to do on behalf of U.S. citizens within other countries.
On July 18, 1868 Sen. Howard explained expatriation to mean “the emigration of the foreigner from his native land to some other land non animo revertendi; that is, with the intention of changing his domicile and making his permanent home in the country to which he emigrates.” Sen. Howard explained that expatriation could only be complete through law alone, and not through any act of the immigrant acting on his own outside of the law.
John Bingham said in April of 1872 that no one could be considered a citizen of the United States until they first surrender their allegiance to the country of their origin:
By all your legislation from the organization of your Government to this hour the legislative construction of the American people is that a citizen or subject of any foreign power, however long he may be domiciled in this country, does not become a citizen of the United States or surrender his allegiance to the foreign government of his birth unless he does in accordance with our local law declare his intention to sever that foreign allegiance, or in accordance therewith take an oath of allegiance to our Constitution and our government, and renounce allegiance to every foreign government. That is the traditional policy of your country.
Bingham also mentioned the “right of expatriation is one of the fundamental principles of American Government,” and in another speech, said, “expatriation is what distinguishes American law with that of the English common law, leaving the two entirely incompatible with each other.”
Any citizen owes the same quality of allegiance to their nation of origin as does their country’s ambassador or foreign ministers while within the limits of another nation unless they freely decide to renounce their allegiance in accordance to law. In other words, it would be preposterous to consider under the meaning given to “subject to the jurisdiction thereof” that a French subject visiting the United States was not a subject of France, but a complete subject (politically) of the United States while within the limits of the nation without first consenting to expatriation.
The United States has always, as a matter of law, considered new arrivals subjects of the country from which they owed their allegiance. As a matter of law, new arrivals were recognized as bearing the allegiance of the country of their origin. No more is this evident then with the recording of the certificate of intent to become a citizen of the United States:
James Spratt, a native of Ireland, aged about twenty-six years, bearing allegiance to the king of Great Britain and Ireland, who emigrated from Ireland and arrived in the United States on the 1st of June 1812, and intends to reside within the jurisdiction and under the government of the United States, makes report of himself for naturalization according to the acts of congress in that case made and provided, the 14th of April anno domini 1817, in the clerk’s office of the circuit court of the district of Columbia, for the county of Washington: and on the 14th of May 1817, the said James Spratt personally appeared in open court, and declared on oath, that it is his intention to become a citizen of the United States, and to renounce all allegiance and fidelity to every foreign prince, &c.
Those who were not qualified under naturalization laws of the United States to become citizens of the United States would be unable to renounce their prior allegiances and consent to the full jurisdiction of the United States as needed to become a citizen. This is how children born to Indian’s and Asians were prevented from becoming citizens themselves under the language chosen.
What changed after the adoption of the Fourteenth Amendment? Not much really. States adopted laws that excluded either “transient aliens” or those not resident of the State. New York by 1857 had already a code that read, “All persons born in this state, and resident within it, except the children of transient aliens, and of alien public ministers and consuls, etc.” This code overturned the court ruling in Lynch v. Clarke (1844) where the court was forced to consider the English common law rule in regards to children born of aliens because New York had no laws on the subject.
The State of Connecticut had the following statute: “All persons born in this State, all persons born without its limits, if children of citizens of this State, who are temporarily absence therefrom, and all other persons being in, or coming into, and locating in this State, with intent to remain and reside permanently as citizens, except aliens, paupers, and fugitives from justice or service, are and shall be deemed to be citizens of this State.”
After the adoption of the Fourteenth Amendment, California, Montana and South Dakota adopted identical language as New York. Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, said “children born on our soil to temporary sojourners” could not be citizens of the United States.
In 1898, some thirty years after the adoption of the Fourteenth Amendment, the United States argued a Chinese man born to Chinese parents in San Francisco could not be a citizen of the United States because his parents were not subjects of the United States at the time of his birth, but the subjects of the emperor of China. (U.S. v. Wong Kim Ark)
The Government had it right and the Supreme Court got it all wrong (deliberately) by deciding the language under old English common law, something the adopted national rule departed sharply from. Additionally, Howard made no reference to citizenship as having anything to do with common law, but virtue of “natural law” and “national law.”
Overwhelming evidence against the interpretation of “subject to the jurisdiction thereof” or “not subject to any foreign power” as reaffirming the common law doctrine of citizenship by birth to aliens can be found following the adoption of the Fourteenth Amendment. In 1867 George Helm Yeaman, United States Minister to Denmark, in his well received treatise on allegiance and citizenship, which was presented to Secretary of State William H. Seward, said: “But the idea of a double allegiance and citizenship united in the same person, and having reference to two separate, independent, and sovereign nations or governments, is simply an impossibility.”
In the year 1873 the United States Attorney General ruled the word “jurisdiction” under the Fourteenth Amendment to mean:
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. 300.)
Congressional Report No. 784, dated June 22, 1874, stated the “United States have not recognized a double allegiance.” This report had been signed by William Lawrence and James F. Wilson, two significant original Fourteenth Amendment participants. There is no way in the world anyone can claim “subject to the jurisdiction thereof” affirms the feudal common law doctrine of birth citizenship to aliens because such doctrine by operation creates a “double allegiance” between nations.
It probably would not be a stretch to say Congress shared the same sentiments as being expressed in the United Kingdom at the time in terms of conflicts arising from “double allegiances” from alien births. The Report of the Royal Commissioners in 1868 on Naturalization and Allegiance recommend the following changes to British law: “Children born within the realm of alien fathers who have been themselves born abroad, shall be deemed aliens. But such children shall become British subjects (1) upon the naturalization of their fathers, or (2) upon their being themselves naturalized either by their fathers during their minority or by themselves at full age.”
If there is one inescapable truth to the text and debates, it is this: When Congress decided to require potential citizens to first be subject to the complete jurisdiction of the United States they by default excluded all citizens of other nations temporarily residing in the U.S. who had no intention of becoming citizens themselves or, disqualified of doing so under naturalization laws. This was no oversight because it was too simple to declare the common law rule of jus soli if indeed that was truly the desired goal by these very competent lawyers (both Howard and Trumbull were lawyers). Instead, there were classes of persons no one desired to make citizens, and the United States had no intention of creating conflicting double allegiances as found under English common law.
Aaron Sargent, a Representative from California during the Naturalization Act of 1870 debates said the Fourteenth Amendment’s citizenship clause was not a de-facto right for aliens to obtain citizenship. No one came forward to dispute this conclusion.
Perhaps because he was absolutely correct.
Natural-Born Citizen Defined
That temptation is strong. We have a better court now, than then. I think it’s time to boost public awareness.
Thank you for your response, calenel. Looks like I’m getting back into FR gradually today/tomorrow, after directing attention elsewhere.
>>We have a better court now, than then.<<
True, at least for now, but we have a better court now than 1973, but unfortunately I don’t ecpect Roe v Wade, Doe v Bolton, etc. etc. to be overturned.
>>I think its time to boost public awareness.<<
Nothing wrong with that.
The past election set that back for a generation or more. Even if McCain isn't conservative on a lot of things, his opposition to abortion should have gotten people off their behinds. I guess they don't care as much as they claim to, since they wouldn't get out and vote against the baby-killer Obama. Because McCain isn't 'conservative enough'. How's that working out for them? Over a million killed each year for who knows how many more years.
The 14th Amendment had the goal of insuring that freed slaves and other blacks were given full citizenship - in the north as well as the south. It also explicitly eliminated the 3/5 ratio by which 'other persons' were counted for purposes of allocating representatives - just in case there was some confusion as to the meaning of 'free persons'. If that ratio was still in effect the 'population' of Georgia, for example, would be more than 1 million fewer for purposes of allocating House seats (and consequently the Electoral College) resulting in a loss of one or two seats/votes. They would go to states with relatively low black populations.
>>I guess they don’t care as much as they claim to, since they wouldn’t get out and vote against the baby-killer Obama. Because McCain isn’t ‘conservative enough’. How’s that working out for them? Over a million killed each year for who knows how many more years.<<
We will never know what kind of justices McCain would have been able to get through confirmation. My guess is that if he had actually nominated a real conservative, he would have been voted down in the senate, and then he would have sent someone more “acceptable.” Dems have plenty of confirmation votes.
If McCain’s amnesty had passed, that would have guaranteed Dem (or worse) control of all 3 branches for a long time. I voted for McC/Palin in the hope that McCain would not do too much damage before Palin took over.
I hear ya! I was prepared to hold my nose and pull the lever for McCain before he tapped Palin, since the alternatives were much, much worse. He wasn't my first choice. Wait, let me be perfectly clear: he wasn't even close to my first choice. Palin made that so much less painful. I tell you, the 'all or nothing crowd' is going to take us all down with them. And they will still get their 'nothing'. A 'principled' vote for Barr or Keyes or whoever, or sitting this one out, was effectively a vote for Obama. You know what I hear from those people when I ask them why they don't run if there aren't any 'conservative enough' candidates? I hear [crickets].
>>I tell you, the ‘all or nothing crowd’ is going to take us all down with them.<<
I have a great respect for many of the “all or nothing crowd,” and if the GOP nominates another character like McCain, I can’t promise I will vote for him/her. But I will always vote for good congress people.
If there aren’t any ‘conservative enough’ candidates, why not you?
>>If there arent any conservative enough candidates, why not you?<<
Please. I am not going to be elected POTUS. I have been active in the local R party, but even there it’s difficult to make any impact when someone like McCain is the “leader.”
I didn’t say there weren’t any, we don’t know who will run in 2012. I vote for good congress people. I just said I can’t promise to vote for another McCain for POTUS.
I believe that Donofrio relates that this Act specifically removes "natural" or "natural born" from its confering of citizenship upon the bases it declares -- and that it never returns to any conferring of citiznship that is weaker than the Article 2 presidential standard.
Sarah Palin started out as a PTA Hockey Mom. Now she's a front-runner for POTUS in 2012. Start small. Get involved. Talk to your party organizer and Tell them you are going to run against the local Rat or RINO. I don't know you, of course, and your skeletons may be spilling out of the closet, but, hey, we all have things in our past that we would rather not have made public (a few do-overs would be nice, too). If you can't stand national scrutiny then try state rep or selectman or what ever.
"All that is necessary for the triumph of evil is that good men do nothing." (Edmund Burke)
That may be. I read about half of that and the glaring, obvious thing to me is that "anchor babies" are a delusion. No way you can read that and conclude that if a Mexican girl drags here butt here and drops a baby in a hospital that she will never pay the bill for that the baby is a citizen and she is entitled to welfare.
I learned something from that, thanks.
What a terrible dodge that is to reach a predetermined outcome.
That is a tyranny that must end.
I think this post makes a good case for that.
>>The 14th doesn’t address whether someone is a “person”. It addresses what determines if a “person” is a “citizen” of the USA.
What a terrible dodge that is to reach a predetermined outcome.<<
I agree. Unfortunately, we had a different SCOTUS then, and they are reluctant to overturn prior SC rulings, even the craziest ones.
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