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The 14th amendment to the US constitution begins with this text:
- 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.
What kinds of people (or rather, babies) are born in the USA but not subject to its jurisdiction?
Note: I'm not asking about the President's power with regards to this amendment, I just want to know what it refers to.
People are not subject to the jurisdiction of the United States when they are diplomatic personnel with diplomatic immunity. Invading military forces were another exception.
This provision has been interpreted to allow someone to voluntarily renounce their citizenship (i.e. you start out with citizenship if you are born in the United States or naturalized as a citizen, but can lose that citizenship if you voluntarily renounce it), but even someone who renounces their citizenship, and is located in the United States, is "subject to the jurisdiction of the United States."
This has been settled law controlled by binding U.S. Supreme Court precedent for 120 years.
Children of non-citizens have been considered entitled to birthright citizenship in the United States under the 14th Amendment since at least 1898:
United States v. Wong Kim Ark, 169 U.S. 649 (1898),1 is a United States Supreme Court case in which the Court ruled 6–2 that a child born in the United States, of parents of Chinese nationality who at the time had a permanent domicile and residence in the United States and were carrying on business there but not as employees of the Chinese government, automatically became a U.S. citizen.
In this case the U.S. Supreme Court stated:
[T]he real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
...
[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.
The U.S. Supreme Court in this case also made clear that Congress does not have the power to override this Constitutional grant of birthright citizenship and this provision of the Constitution is "self-executing" and does not require implementing legislation to be effective:
The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away. "A naturalized citizen," said Chief Justice Marshall, becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the National Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances under which a native might sue.
Osborn v. United States Bank, 9 Wheat. 738, 827. Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori No act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation. The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.
It should be needless to say that an Executive Order may not alter a rule of law that the U.S. Supreme Court has clearly and consistently for 120 years held that Congress may not change.
Subsequent case law has made clear that domicile or permanent residence in the United States is not required for a child born in the United States to be a U.S. citizen.
For example, children of Canadian parents living in Canada whose mother had to be rushed to deliver their child in a U.S. hospital just across the border are dual U.S.-Canadian citizens, even though they were only on temporary visitor's visas for medical purposes.
Legal scholarship regarding the original intent of the language (even from conservative judges) supports this position:
Law professor Gerard Magliocca, the author of the definitive biography of John Bingham, the Ohio congressman who was the principal draftsman of the 14th Amendment, wrote a law review article years ago explaining why.
To simplify, the words “subject to the jurisdiction thereof” weren’t intended to exclude the children of ordinary foreigners living in the U.S. Such foreigners are indeed subject to U.S. jurisdiction, meaning that they are obligated to follow U.S. laws and can be punished for failing to do so.
The words “subject to the jurisdiction thereof” were probably intended to exclude the children of hostile noncitizens invading the U.S. (such as some Native Americans) and the children of foreign diplomats, who were entitled to some early form of diplomatic immunity.
Judge James Ho, a Trump nominee to the U.S. Court of Appeals for the 5th Circuit and an originalist himself, made a similar point in an article before he became a judge.
The debate over the adoption of the 14th Amendment also reflects this meaning:
During the original debate over the 14th Amendment Senator Jacob M. Howard of Michigan—the sponsor of the Citizenship Clause—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes American Indians who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." Others also agreed that the children of ambassadors and foreign ministers were to be excluded. However, concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Senate Judiciary Committee Chairman Lyman Trumbull, the author of the Civil Rights Act, as well as President Andrew Johnson, asserted that both the Civil Rights Act and the 14th Amendment would confer citizenship on them at birth, and no senator offered a contrary opinion.
Footnote On Indians Not Taxed
The "Indians Not Taxed" clause of the 14th Amendment, by the way, became moot in 1924 when all Indians in the United States were made subject to U.S. income taxes by statute in the Indian Citizenship Act of 1924. Specifically:
The Indian Citizenship Act of 1924 provided "That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States". This same provision (slightly reworded) is contained in present-day law as section 301(b) of the Immigration and Nationality Act of 1965 (8 USC 1401(b)).
Well, let's start off with a quote from Sen Jacob Howard, who authored the 14th Amendment
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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
So, it's clear that Howard is not including ambassadors. Let's add foreign heads of state and their entourages as well (remember, the UN did not exist back then). Why? Well, let's think about this for a second...
Let's say Theresa May (UK Prime Minister) were 30 years younger and pregnant. She needs to address the UN urgently so she travels to New York, but suffers a complication and is forced to deliver in New York. Now, technically her child is a US citizen, but it's highly unlikely such citizenship would be offered or recognized. It would be understood that the May child would be a UK citizen, and not in any way a US citizen.
The key part here is subject to the jurisdiction thereof. Now, if you're just some foreign national who came here for a better life, you probably don't care two flips about being subject to the jurisdiction of your old country, especially if it means your child is now a US citizen. In other words, they are implicitly agreeing to be subject to the rules and regulations of the US. For 99.9% of the people in the world, that's no big deal.
But if you're an ambassador or head of state, that matters, and it matters a lot. That subset is not here to be subject to our laws. Indeed, they're here under their own authority and laws. So to suggest that they are somehow subject to our laws solely by having given birth here is to run counter to everything an ambassador represents. And for them to accept that their children are now US citizens, implicitly or not, would be to create an immense conflict of interest, if for no other reason than the US could then hold said child hostage (in their interests as a US citizen) to pressure world powers to bend to their will. No nation anywhere would accept such terms.
According to an op-ed appearing in the Nov 1, 2018 Wall St. Journal by Matthew Spalding:
Democrats and Republicans alike ... claim [the 14th Amendment] means anyone born in the U.S. has a constitutional right to citizenship. But a closer look at the language and history shows this is not the Constitution’s mandate and should never have become national policy.
The crucial phrase is “subject to the jurisdiction thereof.” As originally understood when Congress proposed the amendment in 1866, that referred not merely to the obligation of following U.S. laws but also, and more important, to full political allegiance. According to Lyman Trumbull—who was chairman of the Senate Judiciary Committee and a co-author of the 14th Amendment—being “subject to the complete jurisdiction of the United States” meant “not owing allegiance to anybody else.”
That reading is supported by the 1866 Civil Rights Act, also written by Trumbull, which Congress passed over President Andrew Johnson’s veto before proposing the 14th Amendment. The Supreme Court endorsed this reading in the Slaughter-House Cases (1872) and Elk v. Wilkins (1884).
This article, intentionally or not, implies that foreign political allegiance by a person's parents is disqualifying for birthright citizenship. But the expression applies to the child, not the parents. Read the entire amendment, 1st section:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The article by Matthew Spalding passes over this error and begins talking about illegal immigration in the example of US vs. Wong Kim Ark:
Even when the justices expanded the constitutional mandate U.S. v. Wong Kim Ark (1898), the decision cited as establishing birthright citizenship, they held only that the children of legal permanent residents were automatically citizens. The high court has never held that the clause confers automatic citizenship on the children of temporary visitors, much less of aliens in the country illegally.
But this idea, "aliens in the country illegally," does not appear in US vs. Wong Kim Ark. The court's only possible criterion to residency is permanence:
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
US v. Wong Kim Ark , p.705
...but even with this possible criterion against some people's citizenship, the opinion held that "citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution." (p. 702)
While the supporters of Donald Trump's rhetoric about birthright citizenship have attempted to validate his claim constitutionally and through Supreme Court precedent, it appears to me that they have failed to make this case.
In addition, the opinion at US v. Wong Kim Ark assert that "The Fourteenth Amendment ... contemplates two sources of citizenship, and two only: birth and naturalization." They go on to write:
The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away. "A naturalized citizen," said Chief Justice Marshall, becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the National Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances under which a native might sue.
Osborn v. United States Bank, 9 Wheat. 738, 827. Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation. The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.
US v. Wong Kim Ark p. 702-703, emphasis added
