After the Wong Kim Ark case, there was a minority that held not subject to the jurisdiction meant a foreign national therefore owing no alligience to the United States. It may not be as clear cut today given dual-citizenship (at the time of the case China did not allow citizen to take citizenship of another country) and I believe someone with lawful residence does agree to owe allegience to the United States and their laws so I am assuming they would under any definition be “subject to the jurisdiction thereof”.
But here’s where I think it gets murky. How can a newborn pledge allegience to the United States. You are basing this all on the status of the parents. At least with diplomats it is understood any child born is not subject to the jurisdiction if born in a foreign country. And I would argue the same for babies born to tourist as there is no intention at the time to reside in the US. But residents of the US, whether legal or illegal … you have a hard time convencing me that that child who is intended to remain in the US is not STTJT.
That is a completely different issue
The million dollar question. What does jurisdiction mean? For Fuller in his dissent in Ark, it was about the inability to gain US citizenship therefore if you could not enjoy the rights as a citizen you were not STTJT.
Yeah it’s a tough argument to make.
Honest question, doesn’t the government have records of their status if they emigrated here? Otherwise can you gat a copy of their birth certificates from the counties?
The Chinese government is already not issuing visas to people who have natural born citizenship in the United States unless they can show that their parents were legally in the us when they were born. I have seen the rejection letter for someone born in 1974 to two people who became citizens after 1974. Her parents are both dead. She’s hired an immigration lawyer to try to get documentation from the US that her parents had a green card in 1974. It’s important for her to travel to China. Her employer (a household name you’d all recognize and most of you own one or more of their products) has 100% of their manufacturing in China. Not being able to travel to China would end her career.
This seems to be a preview of what some people would face in the age of being forced to prove that your parents were here “legally” at the time of your birth.
The reason I brought up diplomatic immunity iins that diplomats are said not able to be prosecuted even when involved in traffic fatalities (like in the case of the death of Harry Dunn though that was in the UK and the person responsible was an American with diplomatic immunity).
The drafters of the 14th Amendment had just fought a civil war that arguably was about the difference between allegiance (to whom do I owe loyalty and obedience?) and jurisdiction (who can make you obey when you don’t want to?). I think they were keenly aware of the difference between allegiance and jurisdiction, being in the midst of Confederates having to reswear allegiance to take public office but definitely not considering unsworn Confederates beyond the jurisdiction of the law or the law courts. If the drafters of the 14th had meant allegiance, they would have used that word, but they didn’t.
And the narrow exceptions to birthright citizenship in the 14th Amendment itself are consistent with the jurisdiction idea of “subject to the laws and their enforcement mechanisms because you’re here” rather than the allegiance idea of “who do I owe fealty or obedience to?” The only people beyond the jurisdiction of government in general were Indians because they retained some sovereignty (tribes still are beyond state-level law to a degree), and those with diplomatic immunity or part of an invading military, who are subject to a foreign jurisdiction. There isn’t an exception for random visitors to the U.S., though nobody would expect them to have the slightest bit of allegiance to the United States, because by their presence they’re subject to jurisdiction and that’s the thing at issue under both the language and the intent of the 14th Amendment.
TL, DR: the thing Trump and Co. want the 14th Amendment to say is allegiance, but that’s not what’s in there because that’s not what the adopters of the 14th Amendment wanted to be in there. And to debate how allegiance fits into the 14th Amendment is like debating how salami fits into the designated-hitter rule in baseball. Or, to continue torturing analogies, to play on a field of Trump’s creation instead of the one actually created by the Constitution as amended.
I think it could be argued that, in the 1860s, “birth tourism” wasn’t really something they were thinking about. The amendments’ authors were men in a sexist system, where women’s and children’s citizenship followed the husband / father, and travel was slow and arduous enough, and childbirth dangerous enough, and infant mortality high enough, that people weren’t going to travel long distances to give birth. The presumption was that people giving birth in America were people living in America, and immigration laws were such at the time that almost anyone could come in and naturalize, anyway: giving people citizenship at birth was just saving a lot of paperwork.
Of course, we have a solution to such issues: if you’re worried that the Constitution doesn’t adequately address an issue, amend it again.
Part of the context for the 14th Amendment is forgotten today, but it’s fundamental to both times.
While the South was bleeding men so badly during the war that the ranks of soldiers and essential workers were both depleted, the Union Army is perhaps the only one in such a major war to have had a larger body of young men to draw upon at the end than the beginning.
Immigration was the reason. Men in the North could pay a $300 (sometimes more) bounty to find someone to take their place in the draft, a near year’s salary at the time. It’s estimated that hundreds of thousands did so. That much money attracted young immigrants. I’ve calculated that a million people emigrated to the North during the war, a voluntary emigration to a country at war that may also be unique.
Congress knew that success in the war greatly depended on these immigrant soldiers, who mostly stayed in the country after the war. Naturalization required five years as it does now, so hardly any were even eligible to become citizens when Congress passed the Amendment in 1866. It is unthinkable that Congress would cut off their children from becoming citizens at birth when they wrote the 14th Amendment.
Today’s Supreme Court does not like to consider original intent in its decisions, but some duty needs to be paid to people who did what many actual citizens lacked the courage to do. And many of today’s veterans have also done.
Oh today’s SCOTUS likes to claim it is originalist when it suits their purpose (though not otherwise). There were no laws against machine guns in 1789, there can be no such laws today. I am sure that Thomas can figure out how to make “subject to the jurisdiction thereof” sit up and whistle Dixie.
[hijack] If Thomas wants to overturn Obergefell and other such cases, maybe he’d like to try Loving.[/hijack]
As volunteerism lagged, the Union resorted to conscription in 1863 to keep up the numbers of troops. The War Department would state the number of troops it required, typically from each congressional district, and then, if an insufficient number of volunteers showed up, a local draft board was given the authority to force-enlist the balance of the required number into the Army, usually via a lottery.
The bounty system came about originally as a way to encourage volunteer enlistment, thus reducing the numbers of men actually drafted. States and localities would provide money for these bounties, which were later sometimes supplemented by federal money.
Someone whose draft number was called had a couple of other options. They could pay $300 to commute their callup, which left them vulnerable to being chosen in a later draft, or they could pay a substitute to enlist for them (which would exempt them from later drafts). Sometimes, substitutes could also accept bounty money along with their substitute fee - all in all, it could reach into the thousands of dollars. Many emigrants did take fees to substitute for native-born men - the commutation fee was instituted in part to keep substitution fees fairly low.
Those who enlisted and collected a bounty often deserted from their units, becoming “bounty jumpers”. Often, they would move to another location, reenlist and then desert again, which could give an individual quite a tidy sum of money. In the field, “bounty soldiers” were often denigrated by those who joined up in 1861 and '62.
But this doesn’t detract from a very good post about the 14th Amendment - though I would also point out that overriding the Dred Scott decision was the most proximate reason for birthright citizenship, but keeping faith with immigrants was also a consideration.
Yes, I squashed a lot of history into a little space. Thanks for expanding on a little known topic.
But speaking of Dred Scott:
Dred Scott did affirm this, true, but I don’t believe it established this as something new. AFAIK, states could never confer federal citizenship and nobody ever thought they did. The decision might have been the first time the Supreme Court spelled that out, though. Mainly, IMO, because it was so obvious that no one had ever thought to contest it.
I’m still not clear how an Executive Order can end birthright citizenship. If Congress passes a law on the issue, we can argue whether or not it is constitutional. But we keep seeing Trump issue these things and everyone act as if he was Pharaoh in the Ten Commandments: “So let it be written, so let it be done.” Executive Orders are supposed to be operational instructions to the agencies in the executive branch. They are not laws. So even if ending birthright citizenship is constitutional, which I am not opining on, it has to be Congress doing the deed, not 47 and his sharpie.
I dearly wish Congress, the courts and the press would recognize this and stop letting him cosplay Yul Brenner or Vladimir Putin or Emperor Ming or whoever the hell he thinks he is.
Technically, it can’t . And this one doesn’t actually claim to. In Section 1. Purpose , it goes on about the administration’s interpretation of the Amendment and law and what “subject to the jurisdiction of” means but doesn’t claim to change anything about birthright citizenship. Instead , it claims that it has always meant what this administration says it means.
What this executive order actually does is direct agencies in the executive branch not to issue documents recognizing citizenship or accept documents from state and local governments purporting to recognize citizenship ( operational instructions). It is an acknowledgement that the president does not have the power to change the law/amend the constitution. But it’s not quite “So let it be written, so let it be done.” . It’s more “We have always been at war with Eastasia”
The practical result is the same, though, isn’t it? Especially in Trump’s America. If states won’t issue you documents affirming your citizenship and, as is increasingly the case, you need those documents for protection against arbitrary deportation, your citizenship is more of a theoretical abstraction than a practical reality. You can be treated as a non-citizen whenever the government feels like it and the default state becomes may-not-be-a-citizen. But may-not-be-a-citizen is suddenly much more dangerous than it was when our grandparents came through Ellis Island, especially if ICE gets their $45 billion budget increase.
Oh, absolutely the effect is the same. And I’m not at all in favor of it - but that distinction is what they’re hanging their hat on, that they aren’t actually changing the constitution so they don’t need Congress involved and ratification by the states. Which they would absolutely try if they thought they could get it through but that will never happen.
If the drafters of the 14th had meant allegiance, they would have used that word, but they didn’t.