The United States really is a remarkable country. There’s a lot of debate going on right now over just what the words “subject to the jurisdiction thereof” mean. That’s the part of the Fourteen Amendment to the Constitution granting what is referred to as “birthright citizenship”. Section 1 is the relevant portion of the amendment:
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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Under the common law it was assumed that all persons born within the realm had natural loyalty to the sovereign. In England that was the monarch. Here it was the country, as embodied in the system of declarations, laws, and agreements that constitute why G. K. Chesterton called us “a country founded on a creed”.
Until the Fourteenth Amendment was enacted and ratified in the wake of the American Civil War, citizenship was regulated and determined by the states. You were a citizen of a state and by virtue of that citizenship a citizen of the United States. As commerce from other countries to the United States became cheaper and easier, states increasingly tightened their regulations but the two principles on which states based their citizenship statutes were residence and allegiance. Not all states had citizenship laws and in those states the common law prevailed.
The Fourteenth Amendment was enacted to ensure that former slaves would be citizens of their states. Subsequent to the Fourteenth Amendment the law was that either you inherited your citizenship by virtue of your father having been a citizen or you became naturalized. Those were the alternatives. Then in 1898 a chap named Wong Kim Ark, who had been born in San Francisco in 1871 of Chinese parents, was denied re-admission to the United States after a trip abroad on the grounds that he wasn’t a citizen because his father wasn’t a citizen and he couldn’t become naturalized because immigrants from China were prohibited by law from being naturalized. He sued; the case went to the Supreme Court as United States v. Wong Kim Ark; the Court found in his favor 6-2. Since then nearly all children born in the United States are automatically citizens.
The question is being raised again by opponents of birthright citizenship in its present form. They may have a point. At the least it is not absurd. In most countries transients are not deemed to be “under the jurisdiction” of the countries they’re visiting for purposes of birthright citizenship for their children and it’s certainly not the case under the common law. Considering someone who entered the U. S. illegally, has repeatedly broken U. S. laws, e.g. filing and paying taxes, driving only with valid drivers’ licenses, etc., and voted in foreign elections as being under the jurisdiction of the United States seems a stretch to me. It all depends on whether you think that “under the jurisdiction thereof” and “physically in the country” mean the same thing.
For those who think that changing our present law would require a constitutional amendment, think again. The law as it is now was created by judges and it can be uncreated by them. Additionally, it’s possible that an act of Congress could reverse United States v. Wong Kim Ark.
Just to clarify my own position I think the die is cast on this and it has been since 1985. We’re going to be a country with a sizeable Mexican-American population, many of whom are citizens, and possibly a bilingual one. I think we will become increasingly like Mexico, especially when compared to the U. S. of 60 years ago.
I think we will become increasingly like Mexico, especially when compared to the U. S. of 60 years ago.
Out-fucking-standing. Because Mexico is clearly the country to emulate.
Best joke I’ve heard about Mexican immigration:
Mexicans, doing the Jebs Americans wouldn’t since 1974.
Well, maybe if you’re Mexican that doesn’t sound so good.
Harry Reid introduced a bill to end birthright citizenship in 1993, arguing that “unless changes are made, our dinner table eventually will collapse, and no one will have security and opportunity.”
http://www.politifact.com/truth-o-meter/statements/2010/aug/25/harry-reid/reid-bashes-republicans-position-immigration-he-on/
Yeah, it’s an irony isn’t it? Lots of people want the U. S. to be more like some other country but if they do they’re generally thinking of becoming more like France or Denmark rather than any of the countries we’re more like, e.g. Mexico, Brazil.
How about more like Chile, leading the USSA on the Freedom Index:
http://www.heritage.org/index/
It’s not like the birthright citizenship issue has not been revisited and then repealed by other countries:
PD – Harry’s Reid’s position, back in ’93, is something new to me. It’s all fascinating how such a topic is now percolating to the top of public discussion once again.
That’s another thing. Other countries people want us to be more like (Canada, Australia, New Zealand) have significantly more restrictive immigration laws than we do and, at least in the case of Australia and New Zealand, enforce them.
Canada is the only other developed nation who has the same birthright citizenship stance as we do.
This seems to me an incredible can of worms. There are many, many people living in this country, considering themselves American citizens, whose grandparents and great-grandparents came to this country and never renounced their citizenship in their country of origin, nor were they ever naturalized. (I’ve had friends for whom this is true.) Under a reading of “subject to the jurisdiction of” that some find congenial — one must renounce a foreign allegiance, declare the intention to remain in the US, etc. — neither they nor their offspring were or are now citizens of the United States.
@sam, you are assuming the bill would be retroactive. The bill currently introduced in the House “shall not be construed to affect the citizenship or nationality status of any person born before the date of the enactment of this Act.”
https://www.congress.gov/bill/114th-congress/house-bill/140/text
I side with Sam, this is a can of worms. Suppose, for the sake of argument, the state of California passes a law stating that anyone born within California’s borders is automatically a California citizen. Is a person who qualifies automatically a US citizen, with all the approrpriate rights? If you accept that, suppose such a person moves from California to say Texas, where such citizenship is not automatic. Does he retain his US citizenship or does he lose it?
I think Loving vs Virginia is an applicable precedent.
I didn’t realize there was a bill. But doesn’t that beg the question, PD? The claim is that the folks I’m talking about are not citizens at all. They have no US citizenship to be affected. (Following Elk v. Wilkins, 112 U.S. 94:
)
Children born of parents not subject to the jurisdiction of the United States, and not naturalized, are not citizens of the United States under this interpretation. And neither are their children.
Moreover. I can see an equal protection argument looming under this bill. If folks claiming citizenship by right of birth (problematically) before the bill are “granted” citizenship retroactively (as it were: “The amendment made by subsection (a)(3) shall not be construed to affect the citizenship or nationality status of any person born before the date of the enactment of this Act. “), then the only difference between someone born the day before the bill is signed and the day after (assuming the bill is ever passed) is 24 hours, wouldn’t this raise an equal protection problem in you mind? Doesn’t it seem to violate the equal protection clause?
I don’t know that anyone is proposing a return to the pre-1866 standard, just a return to the pre-1898 standard. That’s actually the point of this post. It’s not crazy and it’s much more in line with historical practice in the U. S. and in most of the world.
What we have now is judge-made law not a law of nature.
Also deemed not to be “under the jurisdiction†of the birthright country is the child born to a military parent, apparently, though it’s unclear to me why the parent’s status is relevant.
Jan: “Canada is the only other developed nation who has the same birthright citizenship stance as we do.”
Depends on how you define a “developed nation” In the following list, I consider Argentina, Uruguay, Colombia, Mexico, and Romania to be devoloped nations..
“Jus soli is common in developed countries that wished to increase their own citizenry. It is also recognized in some developing countries, most notably Pakistan. Some countries that observe jus soli include:
Argentina
Barbados
Brazil
Canada
Colombia
Jamaica
Mexico
Pakistan
Peru
Romania
United States
Uruguay”
“Any person born in Paraguay acquires Paraguayan citizenship at birth. The only exception applies to children of persons in the service of a foreign government (like foreign diplomats).”
“I don’t know that anyone is proposing a return to the pre-1866 standard, just a return to the pre-1898 standard.”
Elk vs. Wilkins was decided in 1884.
@sam, I’m not following you. Congress has the power to create uniform rules of naturalization (Art. I; Sec. 8; Clause 4) Court decisions don’t define who can be a citizen. If they did, then the holding in Elk v. Wilkins that Indians are not Citizens would still be the law. It isn’t, Elk v. Wilkins was superseded in 1924 by Congress.
Congress would have to change the law and bills have floated every year to do so. If they change the law, someone will test whether the law is Constitutional under the 14th Amendment. The SCOTUS has never ruled on whether the 14th Amendment requires citizenship for someone born to people illegally in the country, and it has never ruled on the proposed change in the immigration statute.
Dave Schuler: Considering someone who entered the U. S. illegally, has repeatedly broken U. S. laws, e.g. filing and paying taxes, driving only with valid drivers’ licenses, etc., and voted in foreign elections as being under the jurisdiction of the United States seems a stretch to me.
Sure. Try that in court. “I shot a man in Reno just to watch him die, but I’m not under the jurisdiction of your laws. I’m like the ambassador of Don’t Give a Phuck.”
Immigrants, legal or otherwise, are under the jurisdiction of the United States. The only exclusions under the 14th Amendment are for Indians (who had sovereignty, and enforced their own laws), and diplomats (who are under the jurisdiction of their home country).
Again, that’s a legal interpretation that goes well beyond the intentions of the authors of the Fourteenth Amendment, as contemporaneous correspondence attests.
The SCOTUS at the time of Wong Kim Ark (1998) is not held in high esteem by legal scholars (other than Randy Barnett). Its members straddled two eras (i) the Judicial repeal of Reconstruction (1875-1896), and (ii) the Lochner era (1897-1937).
All of the justices that voted in favor of the Wong Kim Ark decision voted in favor of Plessy v. Ferguson. Justice Harlan (the Great Dissenter) dissented from both. Many of these justices were more willing to extend the protection of the 14th Amendment to corporations than to African-Americans. Mostly they were Gilded Age politicians, and not up to the task of creating a new jurisprudence for a new federal system.
The outcome in Wong Kim Ark might be extended by a future Court to illegal aliens; but that it is no more settled than other Fourteenth Amendment decisions by that Court. (Most of these justices also held that U.S. citizens residing in U.S. territories do not enjoy full Constitutional rights, establishing the notion of relative citizenship)
Dave Schuler: Again, that’s a legal interpretation that goes well beyond the intentions of the authors of the Fourteenth Amendment, as contemporaneous correspondence attests.
You didn’t address the point. Are you saying the illegal immigrant can claim he is not under the jurisdiction of U.S. law, like a foreign diplomat?
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Not like a diplomat. Like a transient.
“I shot a man in Reno just to watch him die, but I’m not under the jurisdiction of your laws. I’m just passing through.”
No. Unlike diplomats transients are subject to our laws and incarceration while they’re here. They are not citizens and their children should not be deemed citizens.
As PD pointed out, a law enacted by Congress could well be sufficient to effectuate that.
Dave Schuler: Unlike diplomats transients are subject to our laws and incarceration while they’re here.
Hence, “Subject to the Jurisdiction Thereofâ€.
What is a transient? I think an extreme example: The Palestinians who live in Jordan, Syria and Lebanon – it’s been decades since they fled the turmoil following the creation of Israel, generations were born and grew-up yet they are still considered transients by those governments.
So I think it really hinges on how you define a transient. I think this would be made easier if we had a rational immigration program that was able to distinguish between people coming here temporarily for work and those who come here to settle permanently.
I agree. That’s the basic problem. That’s the reason that I support a greatly expanded legal guest worker program for Mexican workers. Our present system traps people here who don’t particularly want to stay here.
As evidence I would submit that the majority of those eligible for amnesty under the amnesty program of the 1980s never became American citizens. My intuition is that if there were a similar amnesty program today an even smaller percentage of those eligible would become citizens.
A transient is not a resident; he/she is not living in a location indefinitely. A lawful resident alien like the parents in the Wong Kim Ark case are here with legal permission to work. An unlawful resident alien is residing in the U.S. without legal permission.
Non-resident aliens are usually in the country on some temporary basis, such as a work permit or student visa, but the stay can be long enough for the person to be considered a resident. I suppose there can be illegal non-resident aliens, such as people crossing the border illegally for a visit or temporary labor, or they overstay a tourist visa for a short time.
The U.S. doesn’t get as many mass refugees, but in cases like Haiti, the SCOTUS has accepted the placement of refugees in camps like Gitmo in recognition that this is a location where the refugee cannot be considered to be living indefinitely in the U.S. (This was the premise that Bush relied upon in setting up Gitmo for overseas detainees) The Court recognized that allowing this option advanced humanitarian concerns, either the U.S. would be less willing to provide humanitarian relief if it came with legal complications or the refugee crisis would be worsened by the incentives. As I recall, the Haitians were not allowed to petition for amnesty.
So basically, there is a four corner box resident versus non-resident, which is a long-standing legal concept, and legal versus illegal.
If children born in the US to non-US citizens, and by extension their parents, are not “subject to the jurisdiction” of the United States, then the US should not be able to arrest them for breaking its laws, right? That is what the phrase means and is why it applies to children of foreign diplomats and military personnel, not other noncitizens resident in the US who are “subject to the jurisdiction thereof” by virtue of being liable to be arrested for violating US law. It’s really quite simple; only by deliberate obfuscation can “subject to the jurisdiction thereof” be stretched to mean “born to parents who were not US citizens.”