Strengthening Constitutional Self-Government

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Making Citizens

Lindsey Graham is making noise by proposing an amendment that would deny U.S. citizenship to children of illegal immigrants.

Such an amendment might not, in fact be necessary. The Fourteenth Amendment says 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." The Supreme Court, if memory serves, has not ruled on whether illegal immigrants are "subject to the jurisdication" of the U.S.

Moreover, as scholars like John Eastman have noted, the Supreme Court was mistaken when it declared that the Fourteenth Amendment awarded citizenship to the children of foreigners. 

When pressed about whether Indians living on reservations would be covered by the clause since they were "most clearly subject to our jurisdiction, both civil and military," for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that "subject to the jurisdiction" of the United States meant subject to its "complete" juris­diction, "[n]ot owing allegiance to anybody else." [4] And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean "a full and complete jurisdiction," "the same jurisdiction in extent and quality as applies to every citizen of the United States now"[5] (i.e., under the 1866 Act). That meant that the children of Indians who still "belong[ed] to a tribal relation" and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin explicitly to exclude "Indians not taxed," as the 1866 Act had done, was rejected as redundant.

Eastman gives a good account of the broader argument.  It is well worth reading his full essay. The Supreme Court need only apply the law that the people ratified in order to do what Graham wants to do with an amendment.

Categories > Courts

Discussions - 7 Comments

I wouldn't trust Graham to change a light bulb. He must be worried about re-election, the RINO POS.

What other major nation has this dumb immigration policy? Of course it's time to change it, but that's never been the issue. The issue is the vested interests elites have in massive immigration. Business likes the cheap labor, and liberals like the easy votes.

America started well, and it still has a lot of faithful people, but our elites have been cynical and self-interested for a very long time now.

Actually the "subject to the jurisdiction thereof" is redundant or makes clear that so long as they live in the United States they are subject to the jurisdiction thereof. That is to be a citizen the 14th ammendement is saying that you have to live here. You have to have your domicile here(location+intent to remain). Prior to the 14th ammendement citizens of the United States were strictly defined as the citizens of each State.

If you are born in the United States in any state you are up until the age of 18 considered to be domiciled with your parents. At age 19 you could have been domiciled in Ohio your entire life but be going to school in Michigan and intend to remain in which case you would be domiciled in Michigan... or you could intend to return to Ohio and retain Ohio citizenship. Regardless of Ohio domicile if you are physically in Michigan the state has jurisdiction over you see Pennoyer v. Neff.

Most States have long arm statutes which extend juridiction, but it is clear that if you are in the United States federal courts have jurisdiction over you.

Jurisdiction is really a geographic question. The courts have said that the United States has jurisdiction that extends to Gitmo see Hamdan v. Rumsfeld.

As far as I can tell Jurisdiction simply means does the state or federal government have power or authority over you. What law applies?

If citizens of different states with an amount in controversy over 75k then federal diversity jurisdiction see Strawbridge v. Curtis.

"in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Johnson v. Eisentrager, (339 U.S. 763,

See also, Wong Wing v. U S, 163 U.S. 228 (1896), "These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of
race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws."

Given precedent it would absolutely be necessary to pass Graham's amendment.

Even then I still think it wouldn't change the jurisdiction question. Children of illegal immigrants even if not citizens would still be subject to the jurisdiction thereof and the equal protection of the laws.

I understand that current law reads it that way, but the evidence Eastman has shows that's not the legislative history. It is no coincidence that he same Court which declared that an accident of birth may allow one to be segregated into a differenct section of a rail car was the same Court which said an accident of birth made citizens.
The people who drafted the language of the 14th Amendment used the language they did both to make federal citizenship clear, and to enshrine an American concept of citizenship, rather than an English concept of subjecthood in our laws.
Whether the modern Court will have the guts to reverse longstanding precedent, and whether it ought to do so is an interesting question.

So "ignoring the jurisdiction of" the nation means illegals' children born here are not actually citizens?

It is interesting, some parts of the Eastman essay are strong.

Yet it isn't complete redundancy since the 14th under the modern reading would still prevent redundancy in cases where the person moves out of the States and no longer has the intent to return. Actually if you take away the domicile question, it gets interesting, supposing you don't ask the question about intent to return/remain then if you leave the United States once you are no longer subject to the jurisdiction thereof are you still a citizen?

When for example Marty Frankel ran his crazy scheme and was discovered and tracked by the FBI, the Federal Government had no jurisdiction in Rome so the press found him and his two girl friends spending money and while the FBI could follow him they could make no arrest. By the time the Italians closed in, Frankel had left and the FBI ended up looking like idiots. Eventually he was nabed by the Germans.

So on a non-redundant reading we would have to say that you have to be 1) born or naturalized in the US 2) Actually in the US or under the jurisdiction of the U.S.

Which would mean that when you are in Rome, despite having indicia like an american passport, state drivers liscense you are not an american citizen because you are not under the jurisdiction of the U.S.

Citizenship is then based upon geography, I suppose that it would stand to reason that you remain an american citizen so long as you expect to return to the United States and be under the jurisdiction of the United States at some future point in time.

I would find Eastman's analysis more convincing if it were not for the fact that the question of jurisdiction is almost never a blessing since if you give it much consideration in a criminal context you have run afoul of the law, while in a civil context you could be the defendant as easily as the plaintiff.

Without Jurisdiction for example you could not be arrested. The exception for diplomats mentioned points to the gripe by us little folks that a foreign diplomat can negligently run us over in a DUI and not be imprisoned.

So it seems rather odd if you want to let folks consent to being arrested or falling under the jurisdiction of certain laws (contractually you can change jurisdiction/venue, but you can't pick "no jurisdiction") There is no such choice as "no jurisdiction", at some point in U.S. history the wild wild west was close. In somalia or other failled states it may be a greater option, yet even "no jurisdiction" amounts to might makes right, and as the Somali Pirates discovered the US Navy found jurisdiction.

You literally vote with your feet, by living here you consent to the laws, you consent to the jurisdiction. Technically birthright citizenship probably makes about as much sense as catholic baptism, according to the law the age of consent is really 18. Before you are 18 you can't really consent, so if you are born in the US you are under its laws, and the laws and punishments of juvenile courts reflect in some sense this inability to consent or deliberate maturely. But birth citizenship can be waved as easily as leaving the United States such that one is no longer under the jurisdiction of the U.S. When you turn 18 you can leave, it is entirely possible to become canadian. I would liken it to baptism as an infant, you can be catholic by birth and baptist by choice or hindu by choice, you can even to the consternation of theologians achieve a synthesis. Likewise to the consternation of legal simplicity you can have multiple citizenships, and you can forum shop jurisdiction as well..but I digress.

Problems about the allegiance or consent of those under the age of consent are systemic, no one suggests that birthright citizenship is inalienable, in fact it is fully alienable and can be divested at will.

It actually seems to me that a call for total and exclusive allegiance is far more feudalistic. It is only when total and exclusive allegiance is paired with birthright citizenship that feudalistic elements arise.

Thus I don't see any disjunction between a Lockeian contract based citizenship and birthright citizenship. I would go a bit further: "Thus, when Congress passed as a companion to the Fourteenth Amendment the Expatriation Act of 1868, which provided simply that "the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happi­ness,"

I agree but the Expatriation Act by declaring a natural right to expatriation means that simply by moving to the United States aliens consent to the jurisdiction of the laws of the united states and "naturalize" themselves by expatriation(the distinction is really between temporary nature under 5 years or permant intent to remain domicile.) Carried too far an the expatriation act is actually a restraint on alienability(consent) and thus semi-feudalistic.

The charge of feudalism then falls on those who would claim that people from Ireland or Mexico or X, Y, Z somehow are still under the dominion or jurisdiction of a foreign government when they move to the United States with intent to stay(or make it a domicile) In selecting the United States as a place of domicile they naturalize themselves or excercise the natural right to expatriation.

This is why Justice Gray was correct or at least consistent in holding that:
"a stranger born, for so long as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason."

This stranger born or person who elected to make a domicile in the land of a foreign governement, becomes a citizen of that state, by operation of his right to expatriate. Its the natural right to vote with your feet.

While of necessity geographical, it shares no aspect of feudalism since the primary method of selection or consent is selection of a nation (find me a spot on the globe that is not under some jurisdiction...An impossible task, yet once you find the ideal jurisdiction the only way to consent to that jurisdiction is to move vote with feet).

Thus geographic naturalization by excercise of the right to expatriate, or to change jurisdiction is the opposite of "Natural allegiance as a debt of gratitude; which cannot be forfeited, canceled, or altered, by any change of time, place, or circumstance…. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own,"

Travel outside of a jurisdiction is thus to shake off the laws of that jurisdiction and to take on the laws of another jurisdiction. Having accomplished the travel one cannot say that someone is under the dominion of a foreign prince or subject to a foreign jurisdiction provided such a person has the intent to make the new jurisdiction his domicile. In other words once one tosses away feudalism by accepting the complete alienability of citizenship, location+intent to remain are all that matter. The question of making the child an american citizen by birth is not onerous since he can elect to vote differently with his feet and exercise his right to alienate american citizenship by moving to Canada, but he cannot do so until he turns 18, which is sensible if children are to be in the custody of parents that they share the citizenship of the geographic jurisdiction at which they are domiciled.

Before the age of consent one hasn't yet the right or ability or means(fiscal or mental) to alienate citizenship(which requires consent).

Actually, the feudal world was a mess of competing jurisdictions. That's part of the reason why there were so many wars. From the Kings, who sometimes were kings of more than one land (Scotland and England being perhaps the best known example to us today) to others who were lords of various manors, etc. Citizenship is about the political class. In a liberal nation, that's all of us. The common peasant was not a citizen. One thing that sets liberal citizenship apart is its clarity. The idea of a dual citizen is a contradiction in terms. Just as one cannot be mayor of two towns, so too one cannot be a citizen of two cities or countries. The law may allow it, but it is in principle problematic. The U.S. used to be far more clear about that. Even today, formerly feudal lands are much less worried about dual citizenship than is the U.S. That's due to their cultural heritage.

When I lived abroad I was still very much subject to the jurisdiction of the U.S.--I would have loved not to have filed a U.S. tax return durning those years.

Similarly, as I understand it a fugative from justice is subject to the jurisdiction of the country he has fled, even if he is not subject to the police of that power while he is away. Perhaps that's not how lawyers would put it nowadays, but, as I have been arguing, the people who drafted that strange language for the 14th Amendment were trying to change what had been legal convention. The lawyers on the Court ultimately blocked their efforts.

There's also the right, essential in a liberal nation, to consent to new people joining the social compact. That's really the key matter of principle that the people who wrote the 14th Amendment were trying to uphold, even as they wanted to make sure that all former slaves in the U.S. were citizens. Our right, as a people, to consent to who will join us as citizens is perhaps the strongest principled foundation upon which to oppose the idea that parents can make their child a citizen simply by crossing our border.

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