Well, I think the reality is that nobody at the time considered children or women people. There really wasn’t any reason to determine whether a toddler was a citizen because they had no meaningful interactions with any governments. They didn’t vote, they were recorded as mere hashmarks on the census, they weren’t eligible for any federal services. It wouldn’t have mattered until they became “adults” and then maybe you’d go back and look at their history.
Which proves a real problem for anyone trying to apply 200+ year old case law to modern concepts of personhood. If the government wants to register everyone with the SSA within a couple weeks of their birth, they need to figure out citizenship status ASAP, and you can’t very well have an allegiance test be a part of that.
As evidenced by women in the 20th century who lost their American citizenship by marrying a foreigner: Expatriation Act of 1907 - Wikipedia (my great-grandmother lost her citizenship this way, though I have no evidence that she knew or cared).
Yeah, that one was a joke immediately, since in this case, history and tradition, for more than 100 years, said that the 14th said you were a citizen if you were born here (also, there were tons of gun bans in our history and tradition, which is why it was immediately ridiculous).
See also, the “big questions” doctrine, where Democratic presidents can’t make decisions that are allowed by law if they are “big questions”, but Republican presidents can.
The history muddles it up. The word “jurisdiction” itself, and being subject to it, when used in the context of citizenship, means something more akin to a sovereign’s authority over a person. What is that sovereign’s claim over that person. There can be competing sovereigns claiming authority over a person. Some can be complete, or a lot, or a little. That meaning is linked to a person’s allegiance back to the Sovereign. That’s how the word jurisdiction, in 1868, in context to citizenship, was used. That’s how case law understood it afterwards.
But we don’t really think about it like that anymore. I don’t.
It seems equally clearcut to me. Suppose one of those non-citizens is arrested and argues (assuming the decision had gone the other way) that SCOTUS says he has the equivalent of diplomatic immunity.
I could not answer in the closed FQ thread that Scotus is indeed an Italian citizen. The son of a colleague of mine was an Italian citizen and is now working in the EU because his mother, although born in Argentina, was the daughter of Italian immigrants. So by his logic, he cannot be a US citizen. Deport him.
No, he is not. He was born here. And like some poster said- they changed the rules. Not to mention, that sort of thing- being a citizen because a parent was isnt quite automatic.
The rule change is that now your parent or grandparent had to be born in Italy and never took on another citizenship. Before the recent change, a great-grandparent born in Italy would qualify. Whether Alito is (or is eligible) to be an Italian citizen would depend on whether his immigrant ancestors ever became US citizens.
I disagree with the sphere as a metaphor. A person is within my jurisdiction if I have authority over them. It does not matter how I obtain said authority. The mere fact that someone is within my jurisdiction implies that they are subject to it. It’s like saying it is within my power to punish someone. I am not necessarily limited by the physical reach of my arm.
A foreign diplomat standing in New York is not within the jurisdiction of the United States because the United States grants immunity (promises not to enforce jurisdiction) while the diplomat is so recognized; she is nonetheless within the territory of the United States. We pretend the diplomat is herself a sovereign and immunity is a matter of respect (or at least that’s the idea behind the treaty obligation).
A German marine in a bar on Ramstein Air Base in Germany is within the jurisdiction of Germany, and is standing within the territory of Germany. Treaty likely subjects the marine to the concurrent jurisdiction of the United States.
A U.S. marine in a bar on Ramstein Air Base in Germany is concurrently within the jurisdictions of both Germany and the United States; he or she is standing within the territory of Germany.
Non-naturalized Apacheans, born in “Apache” territory circa 1870, were not then within U.S. jurisdiction, despite being within both U.S. and Apache territory. The reason has to do with how the United States recognizes various Apache tribes as quasi-sovereigns to whom their tribesmen owed allegiance. Such an individual who stepped outside of Apache territory would still be within U.S. territory, though not necessarily within U.S. jurisdiction if, for example, his or her band were at war with the United States. Such an individual’s child, born in New York, may or may not be an American citizen, for various reasons. In the 1920s, Congress forcibly naturalized all Native Americans within U.S. territory, exploiting a Constitutional loophole (the naturalization clause) to make them all U.S. citizens without changing the citizenship clause.
An alien in El Paso, Texas, is within both U.S. jurisdiction and U.S. territory, as you say.
At this point, I think we have gone full circle. As far as semantics untethered to the 14th, your explanation works for me. Makes perfect sense. I think mine also works, though.
Even reading more about it since last week, I’m not even sure it matters to the 14th. Not really. I think any issues I have, have less to do with “within” or “subject to”, and more to do with the word jurisdiction itself. At least insofar as how jurisdiction was used 100’s of years ago related to a person’s citizenship/allegiance. It’s not complicated anymore, though, and hasn’t been for some time.
If we interpret it that way, then any interpretation of the 14th is a tautology. If “under the jurisdiction of” means “a citizen of”, then the 14th reads that any US citizen born in the US is a US citizen.
For clarity, I’m thinking of this quote from the Wong Kim Ark (1898) case when I think of my confusion on what jurisdiction meant long ago (which below is explaining the older English common law / birthright citizenship and how it relates to jurisdiction):
The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual – as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem – and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King
I would never use jurisdiction in that way. To me, it has nothing to do with allegiance or obedience or power (maybe a little). I use it in the normal way people use it today. When I read the 14th it’s not complicated.
Again, it doesn’t mean that today. I’m not sure what it meant when the 14th was drafted. Regardless, there is a SC majority opinion decades after the 14th explaining the history of “jurisdiction” as it relates to citizenship in a way that I never appreciated or thought possible until recently.
It’s a good question. I would say no. Naturalization not something they really considered. Or rather, the main consideration for this clause of the 14th was birth citizenship. The 14th debates over citizenship centered on birth citizenship of freedmen/overturning Dred Scott, children of immigrants, diplomats, tribal Natives, children born to parents owing obvious allegiance to other countries (father at war with us). There are draft versions of the 14th that omit “naturalized” altogether.
Since there was going to be a birthright citizenship amendment, while at it, it felt like…let’s just also lock in that naturalized citizens have the same constitutional status as birthright. Kind of like that. So, two equal paths to constitutional citizenship, both require being subject to jurisdiction (naturalized is inherent).
My two cents based on recent reading of history as spelled out in caselaw.