Will ending "birthright citizenship" help to control America's borders?

Yes, you did not state a law, you stated a piece of the constitution.
The word “and” in this case means in addition to.
Yes, this part of the constitution should be adhered to.

My point was: A U.S. citizen living in Luxembourg is not subject to U.S. jurisdiction, and therefore, under your interpretation, would not be a U.S. citizen. Due to the “and”. I was graciously corrected by two posters and realized my point was incorrect.

Anything else?

Can we apply this same logic to the second amendment as well, and require all gun owners to serve in a well regulated militia?

Well since the only “and” in the second amendment is between “keep” and “bear” you are going to have a tough time using that logic to show anything besides the people having both the right to keep arms and the right to bear them.

If your average gun-owner operated in a well regulated militia, we’d see a lot less reckless adventurism in Iraq, and less of a sheep culture because our men would be men, and not willing to give up their rights the first time some A-rabs get uppity and manage to actually accomplish a goal.

I can’t wait til the borders soften myself, I think getting tougher on immigration is the opposite direction we should be moving in.


Wow, Bricker, that’s just extra-snarky, isn’t it. I thought that liberals used emanations and penumbras to find new rights, or extend existing ones, and it’s the upstanding originalists who make sure that the rights apply as narrowly as possible.

Under what circumstances would someone be either born or naturalized in the US and not be subject to its jurisdiction? Would you argue that illegal aliens are not subject to US jurisdiction? If they are, then under what tortured legal reasoning can you claim that their children, born in the US, would not be (and hence satisfy both clauses of the statement)?

Is the plan to pass a statute that says:

“If a child is born to illegal immigrants, he/she is not subject to the jurisdiction of the US. But, you know, his/her parents still are.”

That sounds about as legally useful as the constant attempts to strip SCOTUS of its jurisdiction over various hot-button cases (and is trying to make the same end-run around the Constitution, IMO).

No, the idea is to pass a statute that states “a person born in the United States who is not the child of a person having a legal right to be in the United States is not automatically a citizen of the United States.”

And that statute is blatantly unconstitutional. It does not change the fact that the child is a) born in the United States, and b) subject to the jurisdiction of the US. Thus, the child meets both criteria for citizenship as set forth by the 14th amendment.

magellan’s argument, as far as I can tell (correct me if I’m wrong), is that the way to get around this is to claim that the child meets the first criterion (i.e. place of birth), but not the second (i.e. doesn’t meet the jurisdictional requirement), and thus does not have to be considered a citizen of the US.

To accomplish this by statute, it seems that one would have to strip the United States of jurisdiction over the children of illegal immigrants (which my proposed statute - with some wording changes, of course - would do). Your statute does not change the status of the child from the perspective of the 14th amendment, and hence is unconstitutional.

“There is a general agreement about the fact that citizenship in this country should not be bestowed on people who are the children of folks who come into this country illegally,” said Rep. Tom Tancredo, Colorado Republican, who is participating in the “unity dinners,” the group of Republicans trying to find consensus on immigration.

It should be pointed out that Tom Tancredo is an immigration restrictionist nutcase who routinely proposes restrictions on even legal immigration which just make no logical sense. Here’s his latest bit of idiocy, the REAL GUEST Act, which ignores the realities of modern American business hiring practices:


It would violate both the U.S. Constitution and the recently promulgated Chile and Singapore Free Trade Agreements, not to mention imposing ridiculous burdens on businesses and prospective foreign national employees. (Like not allowing their spouses and children to accompany them to the U.S., potentially for extended periods - though this bill would also limit the ability of an H-1B worker to be in the U.S. in that status to one year out of any 2-year period. Nevermind that H-1B workers are, by definition, highly qualified professionals who aren’t interchangeable at a moment’s notice.) And provides that foreign nationals in H-1B status are precluded from changing or adjusting their status to any other immigrant or nonimmigrant status. Presumably, that means that if an H-1B worker were granted political asylum or married a U.S. citizen, he/she would still have to leave the U.S. at the end of that 1 year. Sec. 209 provides that illegal presence in the U.S. would subject a person not only to deportation, but to a 1-year jail term, and freaking asset forfeiture.

In my thoroughly considered professional opinion, Tom Tancredo is an idiot, and if it weren’t for the fact that he is a Congresman and therefore other people sometimes pay attention to what he has to say, I would refuse to pay him any heed. Just run a search on his name here: www.house.gov and here: www.aila.org

Eva Luna, Immigration Paralegal

Read further into the piece of embarrassment that is the REAL GUEST Act: it would also strip jus soli citizenship from children born to legally present workers. See Section 104 in my link above.

So what does “and subject to the jurisdiction thereof” mean?

Good question. First, I think we can all agree that it means something. That the intention is to list two criteria, not one, otherwise there would have been no need for “and” anything.

For reference, here is the clause from the 14th Amendment that we are discussing.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

I found what seems to be a thorough examination of the subject. Basically, it seems that the intent of the amendment was to guarantee that individual states would not be able to undo the effects of the Civil War and free Blacks from the binding law of the Dred Scott decision.

An excerpt:

You can read the the full article here.

Bricker, thoughts?

Actually, yes. Could you explain the difference between a passage from the Constitution, as I cited, and law? Isn’t it common and correct practice to refer to passages from the Constitution, like the one I cited, as laws? Is there a nuance I’m missing. I’m obvioulsy not a lawyer, so I’d appreciate the education.

magellan: To me, this is the most telling quotation from what you posted:

This seems to indicate that the reason Indians might not be covered by the citizenship clause (although I’m pretty sure that Native Americans are considered citizens) is specifically because they “are not… born subject to the jurisdiction of the United States.” This seems to jibe with my theory that the only way to attempt excluding children of illegal aliens in a statutory manner is to explicitly place them outside of US jurisdiction, since I’m not aware of any claim that they do not currently fall under US jurisdiction.

Do you think that something along those lines would be necessary? Or would Snakescatlady’s statute be sufficient?

Yes, since US citizen cannot be deported but illegal aliens can. I’m sure that there are technical reasons why a foreign national would be subject to US laws e.g. if I am a victim of a crime in the US, I file my case in a US or state court regardless of the nationality of the perp.

Remember a key point that Taney wrote about in the Dred Scott case - that a person could be made a citizen of a state but that did not make them a US citizen. The example I gave in another thread was if California decided to make all illegal immigrants citizens of the Soverign State of California, would they automatically become citizens of the United States? Of course not. IMO, the “jurisdiction” aspect is to prevent the possible abuse by the feds of not allowing former slaves or their children of becoming US citizens.

But even the writers of the XIVth amd. recognized a difference between being born in the US and being a natural-born citizen of the US - otherwise why would they have included the whole jurisdiction angle?

I’m not either, but yes, there is a nuance. Calling it a law implies that it can be changed or superceded by a law, in other words a legislative act. The constitution can only be changed by amendment.

Interpretation is a different kettle of fish. Any law passed would almost definitely go to the Supreme Court for interpretation of its constitutionality.

Just because citizens and non-citizens are subject to different laws doesn’t mean they’re not both under the jurisdiction of the US. And regardless that doesn’t mean that the children of foreign nationals can’t be citizens, just that their parents aren’t - which no one is disputing.

Your distinction between citizens and non-citizens turns this into a circular argument: I am only subject to the jurisdiction of the US if I am a US citizen. But without being subject to jurisdiction, the 14th amendment says that I am not a citizen. So, by the 14th amendment, how does anyone become a naturalized citizen? Am I missing something here?

Your Dred Scott reference seems to be a bit of a red herring. My understanding was that the one of the points of the 14th amendment was to overrule the Dred Scott decision. I don’t get your last point about how the “jurisdiction” aspect prevents abuse…

Currently it would seem that the “and subject to the jurisdiction thereof” clause is applied mainly to children of diplomats. The Ruritanian ambassador and her family are not subject to the jurisdiction of the United States, so if the Ruritanian ambassador happens to give birth while posted here, her newborn son is not a U.S. citizen.

Of course illegal immigrants, unlike diplomats, can be prosecuted for crimes they commit while on U.S. soil.

Wrong, that’s the whole point. From the article in the OP :

No one has anwered my question; what country would these kids be citizens of ? Any ?

That was poorly worded on my part. I meant that no one disputes that the childrens’ parents aren’t citizens of the US.

Ah, my mistake.