What Did the 14th Amendment Congress Think about “Birthright Citizenship”?

Candidate Donald Trump’s recent proclamation that he is opposed to so-called “birthright citizenship” for the offspring of illegal aliens born in the United States has, like many of his campaign statements, set off hysterical paroxysms of outrage and protest. I do not support Donald Trump for President, but much of his appeal lies in the fact that he is willing to address taboo subjects in a way that the public—tired of candidates and elected officials cowed by rigid protocols of political correctness—finds refreshing. The topic of “birthright citizenship” is a perfect example.Within a week of issuing his immigration reform plan calling for the end of “birthright citizenship,” there has been more discussion (fueled by considerable popular interest) of this poorly-understood aspect of immigration policy than I can remember in my lifetime. Whether or not one agrees with Trump’s platform, one has to concede that he is advancing a national conversation on a critically important issue.

The issue is whether children born in the United States—even if their parents are foreign nationals who entered this country illegally—automatically become citizens. Current law supposes that they do—a concept termed “birthright citizenship.” Many people erroneously think this concept is dictated by the Constitution or enshrined in a U.S. Supreme Court decision. Not so. Section 1 of the 14th Amendment—the Citizenship Clause—states that “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.”  (Emphasis added.)

The origins of this language are a bit hazy, but it must be recalled that the purpose of the 14th Amendment was to correct the infamous Dred Scott v. Sandford decision (1857) and recognize citizenship for the newly-freed slaves (but not members of Indian tribes living on reservations).  The language of the Citizenship Clause derived from the Civil Rights Act of 1866, enacted by the same legislators (the 39th Congress) who framed the 14th Amendment. The Civil Rights Act of 1866 conferred citizenship on “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” (Emphasis added.)  Foreign nationals resident in the United States, and children who become citizens of a foreign country at birth (by virtue of their parents’ citizenship) would obviously be excluded from this definition.

Granted, the language of the Citizenship Clause deviates slightly from that of the Civil Rights Act of 1866, but there is no compelling evidence that the 39th Congress intended a different meaning.  In fact, the sponsor of the Citizenship Clause, Senator Jacob Howard (R-MI), stated that its language “is simply declaratory of what I regard as the law of the land already,” explaining that “This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”  (Emphasis added.)

The record of the debate in 1866 is illuminating. When Senator Lyman Trumbull (D-IL), Chairman of the Judiciary Committee (and a key figure in the drafting and adoption of the 14th Amendment) was asked what the phrase “and subject to the jurisdiction thereof” meant, he responded: “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” (Emphasis added.) Only U.S. citizens owe “complete allegiance” to the United States. Everyone present in the United States is subject to its laws (and hence its “jurisdiction” in a general sense), but only citizens can be drafted into the armed forces of the United States, or prosecuted for treason if they take up arms against it.

Senator Howard agreed with Trumbull’s explanation, saying:

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, . . . ; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

This exchange supports very strongly the conclusion that the Citizenship Clause was intended to mean the same as the Civil Rights Act of 1866—excluding children born in the United States to foreign nationals (that is, to resident aliens).

Parsing the entire debates over the Citizenship Clause in the 39th Congress admittedly presents some occasional inconsistencies and ambiguities, leading reasonable people—on both the Left and Right—to disagree about the meaning of the Citizenship Clause. Conservatives scholars such as John Eastman, Lino Graglia, Edward Erler, and even former Attorney General Edwin Meese, have written in opposition to birthright citizenship. Notably, this point of view is shared by liberal scholars such as Yale Law School Professor Peter Schuck, who coauthored a book with University of Pennsylvania political scientist Rogers Smith, entitled Citizenship Without Consent: Illegal Aliens in the American Polity (1985) making the same argument now embraced by Trump. Federal Judge Richard Posner has called the current practice of birthright citizenship “an anomaly” that Congress “should rethink” because it “makes no sense.” Judge Posner, never bashful, went on to state (in a published decision, Oforji v. Ashcroft, 354 F. 3d 609 (7th Cir. 2003)) that “We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.” Posner volunteered that he “doubt[ed]” whether a constitutional amendment was necessary to change the current practice of birthright citizenship.

Now, in fairness, other respected commentators take a contrary position, including the conservative attorney James Ho. But a considerable body of scholarship supports the view that the Citizenship Clause does not compel birthright citizenship, and that the current practice could be corrected by legislation, pursuant to Congress’ power under Section 5 of the 14th Amendment and Article I, Section 8, Clause 4. Contrary to the assertions of some (including the editorial page of the Wall Street Journal and Ben Domenech, publisher of The Federalist), amending the 14th Amendment is not required. In fact, such legislation has been introduced in the past—for example,  S.1351 (1993), H.R.1567 (2003), H.R.140 (2015)—and supported by Republicans and Democrats. That includes former Senate Majority Leader Harry Reid (D-NV), who stated in 1993 that “no sane country” would grant citizenship to the children of illegal immigrants solely because they were born on American soil. In Oforji, Judge Posner stated that “I hope [H.R.1567] passes.”

The U.S. Supreme Court has never ruled in favor of birthright citizenship for the children of illegal immigrants. The oft-cited United States v. Wong Kim Ark (1898) involved the offspring of a Chinese couple present in the United States legally. And the frequently cited language from Plyler v. Doe (1982)—a 5 to 4 decision written by the activist Justice William Brennan, hardly a strong authority—is dicta contained in a footnote! Automatic birthright citizenship for tourists and illegal immigrants is an anomaly; the United States and Canada are the only developed countries in the world to recognize it. No European country does. American voters overwhelmingly oppose birthright citizenship, by almost 2 to 1 according to a recent Rasmussen poll. Regardless whether one supports Donald Trump for President, he has raised an important issue and provoked a long overdue discussion of the subject of birthright citizenship. For that, he deserves credit.

Mark Pulliam

Mark Pulliam is a contributing editor of Law and Liberty.

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Comments

    • John Ashman says

      Ilya is not really the person you want to rely on about the Constitution, quite frankly. He doesn’t understand the 9th Amendment and thinks the Bill of Rights only applies to citizens.

    • John Ashman says

      Further, the writer of the Amendment stated that it didn’t apply to the American born children of diplomats, but apples to ALL OTHER CLASSES of American born children.

      Further, it wasn’t a light thing to just go to the US to have a baby. Whether you like it or not those people came to stay and wanted their kids to be Americans.

      Further, if a person WANTS the US to have juridiction over them and their children, and the US does not have a preexisting legal arrangement that applies to them with their home country, then the US DOES have full juridiction, because they are in the US, they are submitting themselves and their children to US jurisdiction and are not obliged to a foreign government by their own will.

      This is very simple stuff, really.

    • John Ashman says

      Here’s a perfect example of how Ilya doesn’t understand the Constituiton –

      “On the other hand, the Fourteenth Amendment’s enactors probably didn’t intend birthright citizenship for illegal immigrants. At ratification in 1868, there were no illegal immigrants and no law had ever restricted immigration. “Subject to the jurisdiction” probably meant primary allegiance to the United States as a sovereign.”

      YES, because there is no valid way for the US government to even CLAIM that someone is “illegal” as they have ZERO authority in the Constituiton over it, by design. They can set the standard, but not directly enforce, standards for citizenship. It isn’t because they hadn’t gotten around to controlling immigration, but because it was presumed to be, and literally is, unconstitutional, then, and still now.

      Ironically, lawyers are not really very good at things like grammar and logic, IME, and this leads to absolutely riduculous assertions on a regular basis.

  1. gabe says

    Absotively!!!!

    There was a fair amount of discussion on the “birthright citizen” issue and as you point out the meaning of “jurisdiction.” Did not Trumbull also specifically make comments regarding citizenship status for many of the Chinese workers in California – denying that the 14th would provide automatic citizenship to either the immigrants and / or their offspring.

    How is it that a measure designed to correct the sins of the past and assure citizenship / civil rights for the Freedmen can come to create its own set of problems that effectively dilutes the meaning and value of citizenship to all those properly so bestowed?

    Could it be our friends in Black Robes? and their progressive – libertarian friends who have accepted (desired) the ever decreasing meaning of nationhood and / or national culture?

      • barque says

        In fact, no, Trumbull did NOT deny that the 14th would make citizens of the children of Chinese. Even the Senator from Pennsylvania, Cowan, who could not stand the Chinese or the Gypsies or really any non-white foreigner, understood the Amendment to mean the children of the Chinese, the Gypsies, and all other non-citizens, would be citizens at birth. That’s why he argued against it. He said he did not support it because he didn’t think it was right that the children of “Mongolians” and “Ethiopians” should be citizens at birth.

        • John Ashman says

          You are no doubt right. I didn’t mean to imply otherwise. I was mainly pointing to the error of the argument that one persons misunderstanding overturns an understanding. This is basically Madison’s argument against the Idea of a general welfare clause. I just hadn’t read the entire document so I wasnt opining on what he had stated either way.

  2. Devin Watkins says

    Quite right, you might disagree with the policy of birthright citizenship, but it is FAR from clear that constitutionally required.

    To understand it, I think you have to start at common law citizenship prior to dread scott and the 14th amendment. The greatest exposition of common law citizenship was by Sir Edward Coke in Calvin’s Case. He explained that there are three kinds of allegiance to the king that are relevant today. The first is called natural allegiance which is “due by nature and birth-right.” The second is what we would today call naturalization, or what he called acquisition. The third is local allegiance, which an alien “in amity” (or friendship) enters the country “under the Kings protection” and therefore owes the king a kind of temporary allegiance as long as they are in the country. To have natural allegiance (or be a “birth-right” subject) one must be born while your parents had at least local allegiance to the King, as Coke said, “for if enemies should come into the realm, and possess a town or fort, and have [children] there, that [children] is no subject to the King of England, though he be born upon his soil, and under his [sky], for that he was not born under [a]ligeance of a subject, nor under the protection of the King.”

    You missed the best quote of the proposere of the 14th amendment that disproves the 14th amendment requiring birthright citienship, Senator Jacob M. Howard, who said it “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” Cong. Globe, 39th Cong., 1st Sess. 2890 (1866). Foreigners and aliens, because they have allegiance to other countries, would not fall within the meaning of the amendment according to the proposer of this clause. Now it could be argued that a person who enters into the country in a lawful manner could be, as Sir Edward Coke said, to be “in amity” and subject to a kind of temporary allegiance while they are within the territory. This would not apply to ambassadors who never give even a temporary allegiance, nor could it apply to those that come into the country illegally and never do anything to cause an even a temporarily allegiance.

    I think United States v. Wong Kim Ark the Court was quite clear. Like you say, this case was about legal immigrants who entered legally. But to demonstrate this the Court referenced Coke’s “aliens in amity” along with other common law sources. The Court stated quiet clearly that they are subject to the jurisdiction of the United States only “so long as they are permitted by the United States to reside here.” This seems to establish clearly that people who enter the country illegally cannot be considered to be under the allegiance (even temporary) or control of the government and so their children would not be citizens at birth (at least under the 14th amendment) as they are not “permitted by the United States to reside here.”

    It wasn’t until Justice Brennan’s opinion in 1984 Plyler v. Doe in footnote 10, that the court stated that, “As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” In support of this statement, the Court references no history or case law, only a bare assertion to a treatise by Clement Lincoln Bouvé which cites no case law or history, nor was it needed to determine the meaning of the equal protection clause. This is at best considered unsupported dicta that can (and should) be overturned.

    I’m not much of a fan of Donald Trump, but it is far from clear that his immigration plan is unconstitutional.

    • barque says

      “Senator Jacob M. Howard, who said it

      ‘will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.’ Cong. Globe, 39th Cong., 1st Sess. 2890 (1866).

      Foreigners and aliens, because they have allegiance to other countries, would not fall within the meaning of the amendment according to the proposer of this clause.”

      Honestly how could you take this completely backwards?? Howard says it wouldn’t include foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States

      He’s not talking about ALL foreigners and aliens. The phrase beginning with “who” says which foreigners or aliens he is talking about. Foreign ministers and ambassadors are representatives of a foreign sovereign and are not, can not, be expected to subject themselves to the allegiance of a power they are visiting for the purpose of representing their own sovereign. That’s why they are not subject to the jurisdiction. Everyone knew that. It was a common convention, worldwide. Everywhere, citizenship or subjecthood was NOT conferred to the children of official foreign representatives within the territory. That’s why Howard said “of course” as he said it. He wasn’t just inventing it, he was re-stating something they all knew. Ambassadors and foreign ministers are a tiny sliver of the whole class of foreigners and aliens in the soil, so other than that small sliver, all other foreigners are subject to the jurisdiction of the U.S., which is also then why Howard ended the sentence with “but will include every other class of persons.”

  3. Scott Amorian says

    (OK. Time to rouse the rabble. )

    The contra argument in modern America lies in the character of the opinion of the democratic majority.

    Sometime during the 1980’s America went through a gender change. The statistically average voter change from male to female. The ramifications of this change are substantial.

    Most importantly the gestalt of politics changed from a masculine rugged individualism (with virtues in its moderation and abuses in its extremes) to a feminine interdependence (with its own virtues and its own abuses in its extremes). We keep hearing from politicians theme and variation of “do it for the children.” That is an appeal to the statistically average voter; a woman, 47-ish, IQ of 110-ish, no secondary education, not especially politically knowledgeable (at least compared to the [predominantly male] scholars who write here), with kids and maybe grandkids who she loves very much.

    This shift in gender is, I believe, driving a lot of political current events. In this case we are accepting the children because we want to take care of them. The Donald is in trouble now, because he doesn’t know enough not to threaten the wellbeing of children when the majority voter cares about children very much.

    The theoretical legal argument of constitutionality is disconnected from the reality of the politics in this instance.

    The correction to the constitutional issue is not to take the politically foolish step as The Donald did. The correction requires more political tact. Probably the issue of caring for the locally born children of foreigners must be addressed, while at the same time a clear rule is needed, such as another declaratory amendment reaffirming a limit on government; in other words, an item in a second Bill of Rights. This second Bill of Rights is needed because the new majority is in the process of changing the way the US government works. Without a clear set of government limitations, the new majority is going to run roughshod over the Constitution.

    The ladies did this once with Prohibition right after they originally got the vote. Prohibition of course was a horrible misuse of the Constitution. Now that the ladies, led by the newest wave of Molly Hatchets, have the majority vote they are pushing for all kinds of stuff that are as bad or worse. A lot of recent government actions are a reflections of that, the ACA being one of the more obvious examples. Structured politics has historically been predominantly a male domain, so male culture is adapted to it. The ladies’ culture is still learning. Or at least that’s my take on it.

    More specifically, today’s politicians are taking full advantage of the change in demographics. They will continue to do so until either demographics revert back, which won’t happen any time soon, or the reaffirmation of governmental limits are put in place and made clear for everyone to understand.

    Let’s look at the ARCHIVES page for this site for a little social insight. It has a list of all of the contributors to this site. Count all the male writers and female writers. By my count 311 male writers have contributed and 157 of those have written multiple posts, while only 29 female writers have contributed and only 5 have multiple posts. Women are only a tiny fraction of the contributors here. Why? I suggest that forums for the intellectia, such as this one, are a little disconnected from today’s political reality. Pressing for the dispassionate rule of law isn’t going to get you very far in our political system, mister. A different tac is necessary.

    I’m not disagreeing with any of the very logical arguments in the post. It makes one good point after another. But it ignores political reality, which is that politics often dominates adjudication (as McGinnis has discussed previously) and politics is now dominated by the ladies’ gestalt. Arguing cold legal technicalities will leave you marginalized, and perhaps a bit frustrated as well.

    • barque says

      This isn’t about touchy feely. The legal point of the 14th amendment is that if you are born here (with few narrow exceptions) you have a natural citizenship which is your right. This is not an emotional conclusion. It is based on half a millennium of legal precedent.

  4. RV Abbott says

    The author here completely misquotes Senator Howard. According to Pullman, Senator Howard said the following: “This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers…..”

    However, the conjunction “or,” which Pullman places in brackets, never appeared in the original text. I’m sure he inserted the [or[ for the purpose of clarification, but by inserting the conjunction, Pullman unwittingly changes the grammar–and hence the meaning–of the sentence.

    According to the original, unedited (AHEM) text, the phrase “foreigners and aliens” does not mean all foreigners and aliens, but only those “who belong to the families of ambassadors or foreign ministers accredited to the government of the United States.” Otherwise, the word “who” would be preceded by a conjunction such as “or” (which Pullman helpfully added to aid his case). Grammatically speaking, the absence of a conjunction in the unedited text demonstrates that the phrase “who belong to the families of ambassadors…” is an appositive phrase, which means that it modifies the preceding phrase “foreigners and aliens.”

    Here’s an example of a sentence that is parallel to the original (unedited) sentence by Howard: “Children, who are smart, who are good at sports, do well in life.” Like the original quote of Howard, this sentence contains two consecutive “who” clauses without any intervening conjunction. The absence of a conjunction means that the phrase “who are good at sports” is referring to the same children “who are smart.” If you wanted to refer to an additional or different set of children, you would need a conjunction, in addition to some other indication that you are referring to an additional set of children. E.g., “Children who are smart and children who are good at sports do well in life.”

    Additionally, this interpretation is consistent with the phrase that follows, which is extremely broad: “but will include every other class of persons.” It would not make sense to include such a broad phrase if all foreigners and aliens were excluded. In other words, “under the jurisdiction thereof” is meant to be a narrow exception to the rule that all persons born in the US are US citizens, but under their interpretation, the exception swallows the rule. In short, Howard’s statement is clearly referring to the so-called “diplomatic exception.”

    Finally, interesting though these quotes may be, they are irrelevant. Justice Scalia and Thomas will look at the plain meaning of the text itself. The text itself states that all persons born in US are citizens except those subject to US jurisdiction. Since illegal aliens are subject to US jurisdiction, they are citizens.

    • says

      I’m pretty sure that Justices Scalia and Thomas recognize that the word “jurisdiction” requires context to distinguish what sort of jurisdiction is meant. For example, I’m 100% sure that each of them understand the difference between personal jurisdiction (which can be created by conduct or contract, which can be waived) and subject-matter jurisdiction (which can’t).

      An ambassador from a foreign country can be arrested — handcuffed, put temporarily behind bars, and transported to the border for ejection — if he commits a crime within the United States. He may not be subject to U.S. jurisdiction for purposes of its courts rendering a valid judgment of conviction against him pursuant to U.S. criminal law. Yet he’s surely subject to its jurisdiction for purposes of arrest and expulsion. That he can be handcuffed doesn’t make him a citizen.

      Ditto the child of an illegal immigrant.

      I really am quite certain that Justice Scalia, Justice Thomas, Justice Alito, Chief Justice Roberts, and — probably — even Justice Kennedy are smart enough to make that sort of distinction.

    • barque says

      Actually you have the right idea but, sniggly point, the appositive is “aliens.” It is inserted as an emphasis to “foreigners” since it means basically the same thing. An appositive can be removed from a sentence without changing the meaning at all. In this case it means the same thing if Howard said “foreigners who belong to the families of ambassadors or foreign ministers…..”

      It’s like if I said “Everyone in California is here legally. This of course does not include Aliens, immigrants, who have come across the border without authorization or overstayed their visas.”

      “Immigrants” is an appositive. It was inserted as an alternative word to mean the same as “aliens” and thus reinforce the class I am talking about.

      Also note that there is a who. So as you rightly pointed out, the “who” begins a phrase critical to understanding which aliens or immigrants I am talking about. I am definitely talking about ALL aliens or immigrants, just those who have crossed the border illegally or overstayed legal visas.

  5. RV Abbott says

    By the way, I would love to see a detailed, legal analysis of what would follow a determination that an illegal immigrant’s child was *not* “under the jurisdiction thereof” — can you institute deportation proceedings against a person over whom you have no jurisdiction? This whole line of argument is absurd and self-defeating. Are you seriously suggesting that the U.S. does not have jurisdiction over millions of illegals?

    I’m also curious how they would deal with dual citizens. I’m a dual US-Italian citizen, so I’m probably subject to Italian jurisdiction to the same extent that a Mexican citizen born in America is subject to Mexican laws, despite the fact that I was born in the US and have never actually lived in Italy. Nonetheless, if I were to commit a crime in the US, I would still be subject to the jurisdiction of US courts. But under this bizarre interpretation of the 19C Indian cases, a person who was born has resided his whole life in the U.S. would not be subject to U.S. laws of his parents (or grandparents, for that matter) were illegal immigrants.

    It’s clear from the plain language that the jurisdiction clause was included to exclude children of diplomats. Later in the 19C, the Supreme Court expanded that exception to include Native Americans. The reasoning was erroneous, in my view (the case was handed down only a few years after the Slaughterhouse Cases, which had effectively deleted the privileges and immunities clause out of the 14th Am.)., but the rationale was that Indian tribes were a sovereign nation residing in the U.S., with their own courts and governmental bodies, and thus not subject to the laws of the U.S. But even this reasoning is not analogous to the situation of illegal aliens, who do not have their own courts or governmental bodies. Illegal aliens may retain citizenship of their countries of origin, but they do not, collectively, have their own sovereign nation within the U.S. Coulter and Levin base their whole legal argument on these cases. It’s a colorable argument (ie not entirely frivolous), but not a very good one. I can’t see them getting a single vote from any of the 9 justices.

    • gabe says

      “I would love to see a detailed, legal analysis of what would follow a determination that an illegal immigrant’s child was *not* “under the jurisdiction thereof” — can you institute deportation proceedings against a person over whom you have no jurisdiction? ”

      Following your line of reasoning above, then the sanctuary cities are correct: We can neither deport, detain, or imprison such folks – at least that is the approach they take to the “jurisdiction” issue. All kidding aside, there is another class of inhabitants that Devin Watkins alludes to above but does not specifically identify. Those persons who were not natural born or naturalized citizens were deemed “denizens” of the realm and habituated the realm at the pleasure of the Crown. Denizens could, and often were, forcibly relocated during certain periods, were limited in terms of certain legal rights (and civil obligations, BTW), and could be deported, garrisoned, etc.
      Were they subject to the jurisdiction of the Crown. surely, they were – AND surely, they were NOT. If one takes jurisdiction to mean only subject to say traffic fines, etc – then, Yes, they were. If however, one takes a broader, and perhaps, historically more valid approach to the term, jurisdiction also implies (compels) allegiance and loyalty (thus, the exception for diplomatic staff and family).
      As for the case of dual citizenship, one must admit that while dual, the loyalty, unless otherwise renounced, is still assumed to be present in the dual citizen. Is this not so?

      And yet we now have those who advance the proposition that new citizens ought not to be required to swear allegiance / and/or defend the US. Is this where you are also prepared to take us.

      In a sense, or so it seems to me, that the position you advocate, would lead us back to a Hobbesian state where those not under the jurisdiction, those not willing to profess allegiance to their new land would revert to a state of nature. If I can not deport someone because I have no jurisdiction over him, then what is left. If one can violate law with impunity and the claim be made that we have no jurisdiction over the lawbreaker, then he, by his own actions, has chosen to place himself in a state of nature. A rather unpleasant state of affairs, I would think.

      • barque says

        “Denizens could, and often were, forcibly relocated during certain periods, were limited in terms of certain legal rights (and civil obligations, BTW), and could be deported, garrisoned, etc.
        Were they subject to the jurisdiction of the Crown. surely, they were – AND surely, they were NOT.”

        Actually they were. Within the domain, there were natural born subjects, naturalized subjects, and aliens. They were considered Denizens if they were allowed to stay permanently. But denizens were still aliens, just aliens with legal right to remain. ALL aliens were subject to the jurisdiction while on English soil, even if just passing through and there temporarily. Although many of them were denied certain privileges and rights enjoyed by subjects, they still owed allegiance, obedience, to the laws of the domain, and were under the protection of the crown, as long as they were there. They were WITHOUT QUESTION subject to the jurisdiction.

        In the same way, illegal aliens in the borders of the United States are without question subject to the jurisdiction of the United States. It doesn’t matter that they are citizens of another country. Just like legally present aliens, while in the U.S., they are not expected or required to conduct themselves according to the laws and customs of a foreign country, nor can a foreign country come into U.S. territory and arrest or detain the person for not following the laws of their country while in ours. While in the U.S., they are subject to all United States laws and regulations, they are liable to arrest, jail or fines, for breaking any of those laws, and they are subject to detention and deportation. Although only here perhaps temporarily, they owe complete local and immediate allegiance to the state and the United States while here.

  6. RV Abbott says

    One final point: as for the legal case, the Supreme Court came up with Elk v. Wilkins (the Native Americans case that expanded the jurisdiction exception) only a short time after handing down the Slaughterhouse Cases, which eviscerated the privileges and immunities clause out of the 14th Am. You could argue that the Supreme Court, at the time, made it its business to narrow the practical scope of the 14th Amendment as much as possible (the justices at the time were NOT fans of the Radical Republicans, who pushed through the 14th).

    As we know, Justice Thomas hates the Slaughterhouse cases, and has stated that he would reverse them. Justice Scalia wouldn’t go that far, but he doesn’t like them very much either. I highly doubt that either of these justices (or the other two conservatives, for that matter), are itching to expand the holding of that line of precedent.

  7. says

    Most of the commentary I’m reading on this issue completely misses the Section 5 point.

    Article III, Section 2, of the Constitution creates — but then after laying down a few bright-line and specific rules — gives the Congress authority to further define — the jurisdiction of the federal courts. Congress likewise has the power to define the geographic boundaries of the United States; Congress has the power to control the borders thereof, a vastly broader power, in fact, than it has to act within those borders (our federal government being one of defined and limited powers). Congress legislates every other aspect of citizenship — how it can be granted via naturalization, how it can be voluntarily renounced, or forfeited and revoked — through legislation. And finally, by far most significantly, Section 5 of the Fourteenth Amendment expressly envisions an ongoing, dynamic role for Congress in enforcing the substantive provisions of the amendment.

    I’m less interested in arguing the current status of the law regarding birthright citizenship than I am arguing that Congress has the constitutional power and authority, via legislation (signed by the Executive or passed by appropriate margins in both chambers over his veto), to RE-DEFINE our current practices on birthright citizenship.

    We’re approaching an election season in which our national immigration and citizenship policies and practices are under intense public scrutiny and debate. That’s healthy in the long- and even the middle-term, even though it’s provoking heated argument right now even within each of the two major political parties; from that crucible can come politically legitimate and well-informed decisions on policy, and perhaps ultimately, eventually, political consensus.

    Recognizing Congress’ power to enforce the Fourteenth Amendment through legislation either confirming, modifying, limiting, or doing away altogether with birthright citizenship makes this election more consequential: We don’t need a constitutional amendment to resolve this dispute, but we do need either (a) a Congress and President who will agree on legislation to resolve the dispute, or (b) a Congress, both of whose chambers will resolve it with legislation that can be passed into law even over the President’s veto.

    • gabe says

      Beldar:

      “I’m less interested in arguing the current status of the law regarding birthright citizenship than I am arguing that Congress has the constitutional power and authority, via legislation (signed by the Executive or passed by appropriate margins in both chambers over his veto), to RE-DEFINE our current practices on birthright citizenship.”

      Absotively! We so often confuse ourselves when combining “normative” and “textual” based arguments on this (and other) blog(s). I do and it is refreshing to clear the discussion – in so doing one gets back to the claim made by Mark Pulliam and many others that it is clearly WITHIN congress’s power to change the entire conception of citizenship. We can debate over “dueling comments” of the framers of the 14th ad infinitum – all that is actually needed is the will to protect a traditional concept of citizen. Let the Legislative act!

      My humble contribution to that effort:
      1_ No birthright citizenship
      2- No dual citizenship
      3- No one entering our borders illegally SHALL ever attain to citizenship.

      Add on, fellas, as you see fit.

      • John Ashman says

        Sorry, Gabe. The Amendment is designed to take away this kind of arbitrary disenfranchisement from Congress. It would defeat the entire purpose and allow them to simply take it back away from blacks or anyone else by redefining jurisdiction! It’s nonsensical.

        Your three points are pretty national socialist in nature. Far more North Korean than American.

        America was engineered to be better than the countries we left, not worse.

        Even England believed that if you were born in England, then not only were you English, you owed it to be English.

        • gabe says

          that is not quite correct – there were different classes of citizenship in merry old england. Remember the English did use the term “denizens” to refer to those who were neither natural born or naturalized. One here (and there) illegally cannot be said to be naturalized.

          Yet your point “..you owed it to be English” does take on a rather interesting meaning today with many illegals joining with LaRaza and demanding that not only should they be allowed to maintain allegiance to Mexico (or wherever) but that the Southwestern US belongs to Mexico.

          Yep, I guess that is National socialist – after all. Imagine thinking that one should not only owe but also demonstrate allegiance to one’s new home.

          • John Ashman says

            Gabe, when you deny the natural rights of an immigrant, you will drive some, if not most, of them right into the arms of ANYONE that will fight for their rights. La Raza. Democrats. Communists, Socialists, whatever. They are looking for relief from people with torches and pitchforks and will seek asylum from anyone willing to provide it.

            Compare to Cubans which which got an unconstitutionally different set of rules and ran straight to Republicans over it because immigrants are generally conservative and generally running from socialists.

            Republicans created this situation and want to double down on it. Even if they have to further break the Constitution to do it.

    • barque says

      “Section 5 of the Fourteenth Amendment expressly envisions an ongoing, dynamic role for Congress in enforcing the substantive provisions of the amendment.”

      Key word “enforcing.” The congress is given the power to enforce the provisions of the 14th, not to change, re-write or redefine the Amendment or parts of it. This kind of legislative tinkering is precisely why the Congress went from the Civil Rights Act of 1866, which was in danger of any future Congress changing in any way at any time, to the creation of an Amendment, ratified to become a part of the constitution. They even explained that this was to put the provisions “out of the reach” of future Congresses.

      So, no, actually Congress does not have the power to redefine or restrict any of the wording or the provisions of the 14th Amendment. Only a new Amendment can do that.

  8. says

    What if — I’m spectacularly unconvinced of this yet by anything I’ve read from any constitutional scholar or any prior cases, but what if — the Fourteenth Amendment, properly construed, strips from Congress any role in defining the limits of birthright citizenship?

    If so, then we would in fact need a constitutional amendment to change the current practice and policy of recognizing birthright citizenship of children born to illegal aliens within the territorial jurisdiction United States.

    BUT:

    The only way of teeing up that issue for the SCOTUS — the only way to get a definitive, precedential, principled ruling on that issue — is for Congress to first attempt, via legislation, to re-define our current practice and policy.

    Start by electing a Congress and a President who are willing to pass that legislation. Then — and only then — can the SCOTUS confirm or discredit the constitutionality of that legislation under the Fourteenth Amendment.

    • John Ashman says

      Or just get an amendment and dispense with the drama. But, do we really want Republicans to paint themselves permanently as xenophobes, if not bigots? People who don’t understand economics or American history and law? Republicans need to man up and admit what the Constitution says and if they don’t like it, submit the Amendment and lose fair and square. Not try to be Democrats and simply lie their way around it.

      • gabe says

        And yet the charges you repeat appear to have come straight from the Democratic Party playbook. It has only been in recent decades that an insistence upon following the laws (such as they are) may be construed as bigoted, xenophobic, etc.

        As for economics, a not insubstantial number of economists have made arguments suggesting that illegal immigration is a net economic drain – not to mention the effect upon STEM educated citizens resulting from an ever increasing number of B1 (?) visas favored by our Silicon Valley Progressives.

        So I guess we are not only National socialist but also xenophobes!

        Perhaps it is as simple as asking and expecting people to obey our laws. If you do you are more than welcome and, Oh, show some respect and allegiance for our traditions. On the other hand, we could respect the traditions of Mexico and deport all persons illegally in the country and place severe restrictions on their ability to own property.

        • John Ashman says

          That’s a logical fallacy. The fact that Democrats make the charge doesn’t make it true or false, but if Democrats and libertarians both make the charge, it’s does add a bit of weight to it.

          I find it intersting that when an economist says that having something illegal causes an economic drain, conservatives think that not only must be just “illegal”, it must be stopped at any cost, which makes it an even bigger drain. Rather than removing the illegality and stopping the supposed net negative. The drug war is a net drain by far on society and yet Republicans refuse to give up on it.

          Why would you expect someone to obey an unconstitutional law, Gabe? That’s a serious question.

    • barque says

      Your idea rests on an assumption, which is that the 14th doesn’t guarantee birthright citizenship to the children of illegals. But it does, which is what all the hubbub is about. So, no, there need not be any amendment giving birthright citizenship to the children of illegals because they are already comprehended in the Amendment.

      • John Ashman says

        To be more clear, the word “illegal” is completely irrelevant to the conversation, and even if it were relevant, there is no authority in the Constitution to proclaim the otherwise legal residents and immigrants of individual States to be labeled as “illegal”, nor to create a law restricting their migration, nor place of residence.

  9. Mark Pulliam says

    A brief response to RV Abbott:

    I did not “completely misquote” Senator Howard. I added “[or]” to an excerpt from a sentence (following a comma) to make the statement coherent in context. The debates of the 39th Congress are transcribed verbatim, with grammatical anomalies, gaps in syntax, and some puzzling contradictions. I noted this in my piece. The bottom line is that NO ONE in 1866 thought that the Citizenship Clause would automatically make all persons born in the U.S. citizens. So the word “jurisdiction” has to mean something other than geographic presence.

    The full debate clarifies what was meant–not birthright citizenship for illegal immigrants. Congress has the power to define citizenship, and it should use it to eliminate this mistaken notion. John Eastman, Edward Erler, and Peter Schuck have written about this at length. Most of your questions are answered in their work. I encourage you to consult the body of scholarship that they have created.

    My 1200 word blog post was not intended to be comprehensive. It is an overview.

    • RV Abbott says

      “The debates of the 39th Congress are transcribed verbatim, with grammatical anomalies, gaps in syntax, and some puzzling contradictions.”

      I’m sure that’s the case, but this is hardly unusual. Regulations and statutes are also replete with grammatical analogies and gaps of syntax. That’s the nature of the game. All we have to work with is the text. It’s perfectly fine to add words to provide clarification, but it is NOT fine to do so in a manner that alters the grammatical meaning of the sentence, when the meaning of the sentence itself is at issue. And that is precisely what you did: you converted what appears to be an appositive phase into a conjunctive clause. As you point out, the comma presents some ambiguity, but the meaning of the sentence is by no means clear, as you state. As a general rule, if there is any doubt or ambiguity, you should simply transcribe the text without any alterations. It’s you’re blog, so you can do what you want, but I would advise against trying this in court. The judge I clerk for recently threatened a DOJ attorney with sanctions for doing exactly what you did. The regulation in question was terribly drafted, and I don’t think the attorney meant to mislead (at least so he claimed in his groveling apology), but he got in trouble nonetheless.

      “The bottom line is that NO ONE in 1866 thought that the Citizenship Clause would automatically make all persons born in the U.S. citizens.”

      This is subject to academic debate and is by no means undisputed; there are plenty of academic articles on the subject. If you want to go into the weeds, your argument is undermined by the debates regarding the Civil Rights Act of 1866. As I’m sure you’re aware, one of the purposes of the 14th Amendment to retroactively constitutionalize the Civil Rights Act–i.e., to resolve any doubt about the constitutionality of the Civil Rights Act, and to prevent a future legislature from rescinding it. The birthright clause in the Civil Rights Act is nearly identical to the one in the 14th Am: “[A]ll persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are citizens of the United States.” Civil Rights Act of 1866, ch. 31, 14 Stat. 27. In the debate over the language of the birthright provision in the Civil Rights Act, Republican Edgar Cowan of Pennsylvania objected to the broad language of the Act, complaining that it would confer on the citizenship of “the children of Chinese and Gypsies born in this country[.]” CONG. GLOBE, 39TH CONG., 1ST SESS. 498 (1866). Senator Cowan made a similar colorful comments regarding the children of “Chinese” or “Hottentot” parents. Id. at 499. Senator Trumbull disagreed: he thought he language would “undoubtedly” make citizens of children born here to Chinese parents, since “children who are born here of parents who have not been naturalized are citizens.” Id. However, Senator Trumbull noted that the language of the Ac would NOT apply to Native Americans, because their circumstance was different: Tribal Indians “will not be embraced by this provision because we have always treated the Indian tribes as nations,” dealt with “by treaty, and not by law . . . .” He stated that the Act would only apply to Indians who paid taxes and lived in “civilized society.” Id. at 498. I don’t have time to undertake an exhaustive exposition on the subject, but suffice it to say that your insinuation that “NO ONE in 1866 thought that the Citizenship Clause would automatically make all persons born in the U.S. citizens” is highly contestable. This all goes back to my original point: that you should be more careful when you edit text.

      The debate surrounding the 14th Amendment was short, in part because the Civil Rights Act of 1866 had been so extensively debated. In fact, when Senator Howard introduced the birthright provision for the 14th, he stated that he did “not propose to say anything on that subject, except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion.” See CONG. GLOBE, 39TH CONG., 1ST SESS. 2890 (1866).

    • John Ashman says

      No, sorry, you are completely wrong. For one thing, this was not a written argument, it was spoken and it perfectly matches how we speak and somewhat less how we write, but either way, the message was clear. To add an “or” when when doesn’t belong is disingenuous at best and deceitful at worst.

      Think of it this way, how this would sound if spoken and tell me it doesn’t make sense to you –

      “these are people who love baseball, men, women, children, who love to go to stadiums.”

      Now slap in an “or” arbitrarily and it loses its coherence.

      • Mark Pulliam says

        Your argument is unsound. The quoted statement contained a series of articles, separated by commas. It is unclear from the context whether the author was referring to separate items, or describing a single item. I chose the former interpretation, and used “[or]” to make the sentence grammatical when I excerpted it. If I had used “[and]”, the meaning would have been the same. I will let readers decide who is being disingenuous or deceitful.

        • John Ashman says

          HAHAHA. Okay. You’ve already tipped your cards to demonstrate what you want to believe, and then in true lawyerly fashion, you’ve rationalized an argument for your case, up to the point you’re willing to change the grammar of someone’s statement in order to substantially change the meaning in an absolutely riduculous manner.

          We get it. You don’t like immigrants. But your dislike of others doesn’t change the plain meaning of the Constitution. It doesn’t change 400 years common law, it doesn’t change history, it doesn’t change convention, it doesn’t change grammar.

          You’re willing to allow people to judge your character and intentions, so you say, yet you’re not willing to let them judge basic grammar without an obvious attempt to influence it.

        • John Ashman says

          It’s not trolling, it’s correcting you. Sadly, we have an adversarial legal system, not one that seeks truth. So when you put up a fictitious and wildly inaccurate argument, it demands rebuttal.

          • Mark Pulliam says

            And in your world, only you can see the “truth”; all those who agree are knaves or fools. Reasonable people can and do comes to different conclusions, with ad hominem.

          • John Ashman says

            Reasonable people need to bring a reasonable argument to overthrow 400 years of legal tradition and passages in the Constitution, rather than deliberately changing someone’s words.

            If you are ready for the debate, I certainly am.

        • John Ashman says

          Two people can come to different conclusions, but only one is actually reasoning and the other is rationalizing. You claim “case closed” on your behalf, which is a childish manner of avoiding rebuttal. Life isn’t so kind.

          • gabe says

            How adult is it to call those with a different viewpoint “National Socialist?

            Gee, you are a clever fellow. Now go campaign for Hillary!!!

          • John Ashman says

            Closed borders is a communist policy.

            Controlled borders is a national socialist policy.

            Open borders is a not just a liberal philosophy, but a British and American conservative philosophy, prior to getting hijacked by the neo-conservative movement.

            National socialism describes the political system we have in place very accurately. But don’t trust me, look at the definitions and see how well it matches up. The Nazi party of 1925, written by “guess who”, was all about protecting jobs, restoring national greatness, having a second tier for non-citizens, and evicting anyone who the government dislikes.

            Let’s be real about where we are in politics and let’s plot a course out, not in.

        • says

          In other words you added the “or” to make the sentence conform to the interpretation you are placing upon it, even though the sentence as it was written, without the “or” was perfectly grammatically correct in expressing the interpretation you are denying. Nice.

  10. Mark Pulliam says

    RV Abbott:

    1. My piece was a not a court filing, but a blog post. I will let readers decide whether the addition of “[or]” following a comma was a clarification or an alteration. I concede that the legislative history is “hazy” and subject to dispute. Did you miss that?
    2. My argument IS that the Citizenship Clause was intended to mean the same as the definition in the Civil Rights Act of 1866, which contains an exclusion for persons “subject to any foreign power.” This would deny citizenship to the parents of foreign nationals. So where do we disagree?

    • RV Abbott says

      “I concede that the legislative history is “hazy” and subject to dispute.”

      Yes, you do in your original blog post, but in your comment, you state that NO ONE in 1866 thought that the Citizenship Clause would automatically make all persons born in the U.S. citizens.”

      It’s fair enough to let the reader decide, but then you’re better off leaving the original language intact.

      “My argument IS that the Citizenship Clause was intended to mean the same as the definition in the Civil Rights Act of 1866, which contains an exclusion for persons “subject to any foreign power.” This would deny citizenship to the parents of foreign nationals. So where do we disagree?”

      As Senator Trumbull stated in the debate, the language of the Civil Rights Act would deny citizenship to Native Americans, but not to children of foreign nationals: the language would “undoubtedly” make citizens of children born here to Chinese parents, since “children who are born here of parents who have not been naturalized are citizens.” He later stated (consistent with the language of the Act) that the children of Native Americans are not included.

      The situation of illegals is much more analogous to children born of Chinese parents than to Native Americans because we have always treated the Indian tribes as nations,” dealt with “by treaty, and not by law . . . .” Illegals from El Salvador do not have their own separate courts or government within the United States. They do not have sovereign territory within the US. It’s simply preposterous to suggest that a child who is born in the US, who has never even set foot in El Salvador, and who has no connection to El Salvador other than the fact that his parents were born there, are under the jurisdiction of El Salvador rather than the United States.

    • John Ashman says

      The grammar is quite clear. Mr Abbott has it perfectly correct. But it was a nice attempt at changing the meaning, and quite “liberal” in tactic.

    • says

      I’ll start with your # 2. The 14th Amendment was exactly analogous to the Civil Rights Act, but you err when you state “not subject to any foreign power” excludes foreigners. No one is subject to a foreign power when within the U.S. except official representatives of that foreign power, like ambassadors, enemy occupiers, etc. This exclusion was well known in the common law for hundreds of years and when the authors then created the 14th they did not change the effect at all, although they altered the wording a little, to make it more consistent with the common law language “subject to the jurisdiction.”

      #1 adding an “or” is an alteration, not a clarification. It fundamentally changes the meaning of an otherwise grammatically correct sentence. Adding an “or” not only changes the meaning, it destroys the grammar and is rendered meaningless. You can’t add an “or” in front of the word “who.” “Who” refers to something, namely, foreigners/aliens. The sentence means only those foreigners/aliens WHO BELONG TO the families of ambassadors… And the history is not hazy at all. The authors knew perfectly well that “subject to the jurisdiction”, in hundreds of years of the common law and practice, included everyone but official representatives of foreign governments, like ambassadors, foreign ministers and their families and staff; enemy occupiers; personnel on friendly foreign ships in port. This is why Howard said the provision would not include, “of course”, those who belong to families of ambassadors and registered foreign ministers.

  11. Mark Pulliam says

    That Beldar guys looks remarkably like a law school classmate. Bill, I agree. The issue is Congress’ power. If Congress had any guts, they’s pass and law and see what SCOTUS does.

    • John Ashman says

      Congress has never shown a lack of guts for breaking the Constitution and ending birth right citizenship unilaterally for one of the “all other classes of persons” is unconstitutional. But SCOTUS often lets them get away with it. I doubt they would, however, so GOOD LUCK.

  12. says

    Mark, I wondered what happened to you; I hope all is well and good.

    I respectfully disagree with you on this matter. Quotes from legislation writers [especially the ultimate legislation, the Constitution] do not define the meaning of provisions, but it can assist is discovering meaning if there is ambiguity in the measure. There is no ambiguity regarding “born in” and “jurisdiction,” even though people like Dean Eastman want to play games that “jurisdiction” means “allegiance.” [“I pledge jurisdiction to the Flag of the United States of America….” will be the new pledge?]

    I have written on the subject here, and that is the final word, despite its brevity:
    http://www.kennedyforlaw.com/so-what-is-the-real-deal-with-birthright-citizenship

  13. tom janson says

    I excluded the groups of words and combined just the items in the series. The conjunction ‘or’ indicates that children of ambassadors and foreign ministers represent the same group, foreign diplomats. The only comma missing is before ‘or’, which is called the Oxford comma. It’s not required, but Americans say you should place it between the last two items. The series of four that Senator Jacob Howard described is grammatically correct. Pulliam, did not have to add ‘or’ to make it a list of four.

    foreigners, aliens, ambassadors or foreign ministers.

    The important things to remember about using commas in series are
    these:

    1. A series includes 3 or more items of the same type (words or
    groups of words).

    2. The series is connected by and, or, or nor before
    the last item.

    3. A comma separates items in the series, including the
    final item preceded by and, or, or nor.

    The ‘Oxford comma’ is an optional comma before the word ‘and/or’ at the end of a list:

    We sell books, videos, and magazines.

    It’s known as the Oxford comma because it was traditionally used by printers, readers, and editors at Oxford University Press. Not all writers and publishers use it, but it can clarify the meaning of a sentence when the items in a list are not single words:

    “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

    • Mark Pulliam says

      So, Tom Janson, if we employ these rules to the sentence in question, what does it mean? “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers….” Was Sen. Howard referring to three distinct categories (“foreigners,” “aliens,” and “family members”), four (the prior three plus “foreign ministers”), or only one (interpreting the phrase to refer only to foreign diplomats and their families)? Only the last interpretation supports a broad definition of birthright citizenship. I interpreted it as three, which is why I inserted the “[or]” after aliens. Whether it is three or four, the statement refutes birthright citizenship for the children of illegal immigrants.

      • Ken Kelly says

        The transcriber chose the commas. Those of us who understand Sen. Howard as describing the broadest right to birthright citizenship might have transcribed him thus:

        “…foreigners – aliens – who are family members …”

        “Alien” and “foreigner” are, of course, synonyms.

      • John Ashman says

        Aliens is just a restatement of foreigners and and is done to include both words in common use. It is not intended to imply a different group or the sentence would be structured differently. OR. And and/or would have actually been used. It is like me saying to an American “I like to play football, soccer, because it is great physical activity. The comma denotes a pause in the rhythm, a pause done to separate only slightly words for better understanding. yhiabis the problem with bias. It leads people to create unsupportable fictions and lose all credibility.

        • tom janson says

          It is obvious that Jacob Howard and others looked to Emerich Vattel for guidance in drafting the 14th amendment.

          “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
          http://birthers.org/USC/Vattel.html

          • John Ashman says

            Not obvious at all. And especially when quoting a birther conspiracy website. What is your evidence? Nothing. In fact, the fact that Howard would extend natural born citizenship to the children of non-citizen slaves shows that he was NOT xenophobic as Vattel was, and did NOT believe that parents had to be citizens for a child to be naturally born.

      • tom janson says

        It means that persons born in the United States who are foreigners or aliens are not included to be auto-citizens. It also means that children born to foreign diplomats are excluded. You are refusing to accept that it’s totally simple and factual. It took these amount of words to reach the third item in the series; who belong to the families of. It’s a little more complex than a simple series of three.

        You ignored my post, for the most part. It is a series of four groups of people to be exact. The comma after aliens replaces the conjunction, but is needed at the end to separate ambassadors or foreign ministers. Had he said ‘that belong’ instead of ‘who belong’, it could be argued to the others’ liking. There’s quite a bit more to dissecting the sentence, but these are the basic facts.

        who are foreigners, aliens,

        • John Ashman says

          Tom, your ability to use grammar is simply atrocious. You’re claiming a tautology here. “People who are foreignors, aliens aren’t natural born citizens” Of course. But how would you be born here an be an alien?!? ONLY if you are born to someone who has no allegiance to the US and does NOT want you to be a citizen.

          Your argument is absolutely ridiculous on its face, because it’s totally illogical and beyond that, show an absolute inability to understand basic sentence structure or conversational English.

          I would suggest going back to school to take a class like Logic and Language. Please.

          • tom janson says

            It’s still a series of four groups of people not included in auto-citizenship. Those are the facts that cannot be challenged one iota. I never made an argument. I pointed out that the sentence is a series of four groups. My ability to use grammar in order to confirm this as a series is perfect. An alien would simply be any child born here of illegal alien parents. Nothing debatable about that.

          • John Ashman says

            No, just freaking no. Good lord. You’re simply rationalizing something that makes zero logical sense as you describe it. As Madison would say, it would be a very singular way of describing those who wouldn’t be citizens.

            One of the things that blows a huge hole in your theory is that there never WAS up through that point, anything like an “illegal alien”. They didn’t know what that was. It would be a nonsensical term to Senator Howard. So if he actually had meant “illegal aliens”, where is the recommendation for determining who is “illegal”. As the Feds have no delegated power, why is that power not included – the ability to determine whether migration is legal or illegal and to offer up partner legislation to define it? At that point, there were residents, and there were visitors, and there were citizens. People didn’t really “go on vacation” much, especially with kids, because it was a dangerous journey. People didn’t say “let’s go visit America! Maybe have some kids!” There was no such thing as “anchor babies”, as there was an assumption of a desire to reside in the US. You came, you settled, you had babies. No one demanded advanced permission to come, not even the States as near as I can find. None had any rule such as “if your baby is born less than one year after arrival, he isn’t a citizen” or “if you haven’t gotten citizenship, your babies won’t be citizens. If you can find these laws, please cite them. Further, blacks were born of non-citizens and were now said to be citizens, not by virtue of their parents, but by virtue of where they were born AND NOTHING ELSE. Now you’re claiming that they would give a civil right to slaves that they would NOT give to free white men? That’s preposterous on its face. There is absolutely NOTHING rational or reasonable about your claim, not the grammar, the history, the context, the law, the Constitution, nothing.

          • tom janson says

            I understand the structure of the sentence, while you don’t have a clue what you’re talking about. There are four clauses, no appositives, and the series of four that’s punctuated properly. You have to prove something about what you’re saying, but you haven’t even started showing any evidence of anything.

        • John Ashman says

          My explanation is perfectly sensible to those with logic, reason that can understand a rational argument, but not so much to all other classes of people.

  14. John Ashman says

    Now I know exactly how Madison felt in Federalist 41 when he couldn’t get people to grock the fact there is no “General Welfare Clause” in the Constitution.

    • tom janson says

      Being an illegal alien today fits perfectly with the 14th amendment. They broke our laws, and have no allegiance to the U.S. That, by definition excludes them or any of their offspring from being a citizen. You are a clown. It may depend on birth, but doesn’t hinge upon it.

      Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the constitution: http://www.14thamendment.us/articles/anchor_babies_unconstitutionality.html

      and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.

      • tom janson says

        Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment, and the one who inserted the phrase:

        [T]he 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.

        • John Ashman says

          And nothing swears allegiance to your former country than moving to another country so that your kids can be subject to the full juridiction of another, instead of the one you love so much?

          Oh, wait, that sounds silly.

        • John Ashman says

          Please detail where the delegated authority over immigration is in the Constitution. Then please quote Founding Fathers who suggested this as delegated authority. And then follow up with why you think they never passed an immigration law in their lifetimes.

          Thanks.

        • barque says

          A lot of people trip over themselves on this one. When Trumbull said “What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means” he was answering to the assertion by another Senator that the Indians were withing our jurisdiction and therefor, in many ways, “subject to the jurisdiction.”

          In other words, this conversation was about the indians, who were at the same time within the United States, but owed allegiance to their own sovereignty. The sovereign indians were not completely subject to the jurisdiction. They were not expected to follow our laws. We could not arrest and prosecute an indian for killing or stealing from another indian. That was the jurisdiction of their own sovereign nation.

          They did not owe complete allegiance to the jurisdiction. This is all Trumbull was talking about.

          That is also exactly why foreign ambassadors are not subject to our jurisdiction. By what is called a “fiction of law,” foreign ambassadors by our agreement are as if they are walking on their home country’s soil, and they owe their allegiance and must follow the laws and directives of their home country. NOBODY else on U.S. soil gets this “extraterritoriality” except for legally recognized foreign ambassadors, or the sovereign indians.

          If you look through ALL of what Trumbull said throughout the debates you will see, CLEARLY, that he understood the phrasing to included ALL foreigners on U.S. soil other than ambassadors, enemy occupiers, and sovereign indians. You have to really be good at cherry-picking quotes and taking them out of context to pretend that he meant that foreigners owed allegiance to anyone else. Because they don’t. They owe only their complete, direct, and immediate allegiance to the U.S. while within out borders. He knew that, agreed with it, as did most of the other Senators. The few who didn’t agree with it, disagreed because they understood that “subject to the jurisdiction” meant all foreigners except those narrow exceptions.

          • John Ashman says

            “GRAMMAR IS IMPORTANT to all classes of people, except birthers, xenophobes, who don’t like immigrants.”

      • John Ashman says

        Federal immigration law was known by people at that time to be obviously unconstitutional, so the idea of immigrants “breaking our laws” to get here would have been patently ridiculous to them.

        “This will not, of course, include persons born in the United States who are foreigners who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

        Read this sentence and explain to me how it implies in any way that children of immigrants are not citizens. Now, imagine you’re speaking live to an audience where some people use the word “foreignor” and some use “alien” as they are SYNONYMS and you want to use both terms. One option is to say “foreignors or aliens”. Another choice is “foreignors and aliens”. The third easy option that is perfectly valid, said with a pause (denoted by commas) – “foreignors, aliens, ”

        In order to make this sentence say what you think, it requires a complete reconstruction. To paraphrase either Jefferson or Madison, or both, if you have one possible meaning that is simple and plain on its face, and the other forces you to do all kinds of mental gymnastics to make it work, it is the simple explanation that is the appropriate one. Senator Howard simply used both terms for one class of persons – diplomats. What you THINK he said is the following –

        This will not, of course, include persons born in the United States who are THE CHILDREN OF foreigners OR aliens who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

        But that’s not what it says. Please take a basic grammar course.

        • tom janson says

          You are a jackass.LOL You can’t explain it, because it’s a series of four. Tell us what the independent clause is, you goof?

          • barque says

            tom I’ve addressed this before, but it is a serious misunderstanding of basic grammar to believe that Howard’s sentence is a series. You have to completely ignore the words “who belong to” OR you have add other words like “persons” and so on. In other words, you literally have to CHANGE the sentence to make it what you want it to be.

            Howard’s sentence is grammatically perfect as it is and does not need to be parsed and sliced and diced and added to, in order for it to make sense. It makes sense as it is. It identifies a class of persons and describes which of that class he is talking about.

            Have you heard of an “appositive”? An appositive is a word or a phrase, in this case a single word, which is inserted into a sentence for emphasis or clarity. You put a comma in front of it, and then a comma after it, when you insert it. An appositive can be removed from a sentence without altering the meaning in any way. in Howard’s sentence, there are actually two appositives. One is “of course.” The other appositive is “aliens.” Let us take a look at it, and learn a little something about grammar:

            “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

            The “of course” is an aside. It can be removed without altering the body of the sentence in any way.

            “This will not include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

            The second is “aliens.” Why do I say that? Well, two reasons. The first is that it is written that way. The vocabulary and grammar tell me this. “Aliens” is a synonym of “foreigners.” Aliens are foreigners. The only reason to include it is to emphasize the meaning, in the same way I might use both terms “Illegal aliens” and “undocumented workers” in the same sentence.

            Take “aliens” out and the sentence means exactly the same thing.

            The WHO in the sentence which you and everyone likes to pretend has no meaning, identifies which foreigners Howard is talking about. He is not talking about all foreigners/aliens. He is only talking about the foreigners (aliens) who belong to families of official representatives of foreign sovereigns.

            “This will not include persons born in the United States who are foreigners who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

            And the reason we know without a doubt that this is indeed exactly what he meant, is because this is exactly the common practice and the common law at the time. All persons in the U.S. with the exceptions of ambassadors and their families, were “subject to the jurisdiction.” He was merely stating it as he already understood it. He was not inventing anything.

            As I said before, you and Dr Eastman, Erler, the whole lot, you REALLY have to jump through hoops and do some crazy grammar gymnastics to try to claim Howard was saying something like “This will exclude all aliens and foreigners, and also all foreigners who are ambassadors.” lol.

            How do we know Howard did not mean to exclude ALL aliens and foreigners? Because in other places he explains quite clearly that he considers virtually anyone born on U.S. soil to be citizens by birth. Not just citizens.

            Here he is, just two weeks before making the statement you guys keep trying to twist around. The following quotes are from his speech in front of congress introducing what would become the 14th Amendment:

            “A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws.”

            Hmm. Gosh. Born within the limits of the U.S. and subject to their laws. This is the same Howard you keep insisting was trying to exclude all foreigners/aliens.

            and a little later

            “The effect of this clause was to constitute ipso facto the citizens of each one of the original States citizens of the United States. And how did they antecedently become citizens of the several States? By birth or by naturalization.They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States as were born in the country or were made such by naturalization”

            Honestly it simply doesn’t follow that Howard’s sentence should be twisted up the way you keep trying to do, because there are other quotes from him which make clear the only exceptions were foreign representatives and their families – exactly what his sentence says as written.

  15. John Ashman says

    The complete inability of lawyers to understand basic English and grammar is precisely why our country is a mess. They simply say that grammar is arbitrary and any word or phrase can mean what they want. Why even bother with language or a dictionary? Just grunt and do whatever you want.

    • tom janson says

      YOU ARE A CLOWN OF EPIC PROPORTIONS. “They simply say that grammar is arbitrary and any word or phrase can mean what they want.” YEAH SURE, anything can be mean what you want it to, especially when it doesn’t mean what you want it to.LOL

      • John Ashman says

        Yeah, weird. When they first published this , I was like “oh, wow, okay, they have a smoking gun, I guess I’ll have to cave on this issue.” It disturbed me so much that I started reading all of the surrounding discussion looking for clues and it just wasn’t fitting with the assertion. So I went back and read Senator Howard’s comment slowly without being TOLD what it means and oh, look, it means precisely the opposite of what the Birthers think, because GRAMMAR IS IMPORTANT to all classes of people, except birthers, xenophobes, who don’t like immigrants.

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