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What Does “Subject to the Jurisdiction Thereof” Mean in the 14th Amendment?

By: AndrewHyman (Diary)  |  August 14th, 2010 at 12:17 PM  | 

RESIZE: AAA

The leading case is United States  v. Wong Kim Ark.  That case involved parents who were in the U.S. legally when they had a child (i.e. they had “permanent domicile and residence” in the U.S.), so it’s not directly on point regarding birthright citizenship for illegal aliens.  However, the Court in Wong Kim Ark gave some big hints.  The Court in Wong Kim Ark stated that:

“The words ‘in the United States, and subject to the jurisdiction thereof,’ in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall….”

The prior opinion by Chief Justice John Marshall was The Exchange v. McFaddon. Here’s an excerpt from John Marshall’s opinion in that case (emphasis added):

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

So, it’s not 100% clear from this how Marshall (or the Court in Wong Kim Ark) would have approached the issue of birthright citizenship for illegal immigrants.  But, we have two important criteria that Marshall mentioned: (1) continual infractions of the law, and (2) license to enter.  Obviously, illegal immigrants have no license to enter, and granting automatic birthright citizenship is obviously an incentive for continual infraction of the laws.

The Supreme Court precedents specifically say that children of foreign diplomats, and also children of occupying forces, are not subject to the jurisdiction of the United States, and do not automatically get U.S. citizenship upon birth.  I don’t think that it would be a huge problem for Congress to treat illegal immigrants like foreign diplomats who are not subject to the jurisdiction of the United States; for example, the individual states would still have full jurisdiction, even though the federal government would not.  In any event, even if Congress does not want to treat illegal immigrants more like foreign diplomats, still the factors described by Chief Justice Marshall suggest that they fall within the 14th Amendment’s jurisdictional exception.

I previously made some of these observations in a comment thread, but thought I’d make a full diary post out of them.

COMMENTS

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  • AndrewHyman

    I should mention that the leading case in England on birthright citizenship prior to the 14th Amendment was Calvin’s Case (1608). The key in that case was whether the parents are in amity, allegiance, and obedience with the sovereign, and I think it’s pretty clear that illegal immigrants are not in amity or obedience. Anyway, Calvin’s Case s must-reading on this issue.

  • AndrewHyman

    Here’s a link to Calvin’s Case:

    http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=911&chapter=106337&layout=html&Itemid=27

    The US Supreme Court mentioned Calvin’s Case several times, in Wong Kim Ark.

  • K.

    …for the conclusion that we could change birthright citizenship without an amendment. I would like this to be true. I’ve read the Heritage Foundation argument on the issue, but on cross examination, I don’t think it makes any sense. Jacob Howard, who wrote the 14th amendment, said the following:

    [The 14th amendment] 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 person.

    In other words, everybody except for the children of ambassadors and presumably of foreign armies is subject to our jurisdiction.

    This is why in the short run I say let’s focus on a national Proposition 187. Judging by the aye votes of 30% of Latinos when it was passed in California, I think we could definitely build a cross-racial coalition on it. And the effects would be big. Government funding going to illegal aliens is the worst consequence of them staying here. Let’s stop the bleeding.

    • AndrewHyman

      There’s a lot of ambiguity in that quote from Jacob Howard. Did he mean “AND who belong” or did he mean “OR who belong”? If he meant that only children of diplomats would be excluded, them that would contradict the dicta in Wong Kim Ark, which also excluded children of occupying forces. I could quote other framers of the 14th Amendment (such as Senator Lyman Trumbull) who said that anyone owing allegiance to a foreign power would be excluded.

      I just think it’s nut to suppose that a billion people could sneak into our country on defiance of our laws and our legal jurisdiction, and claim citizenship for their children. It’s insane. But insanity seems to be the norm in this country, unfortunately.

      • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

        political being the one meant in the 14th A. more later

  • ywhyvon1

    If illegal immigration was a big problem in this country at the time of the ratifying of the 14th? It seems to me, if the 14th was expressly written for the purpose of defining the offspring of previous slaves as legal US citizens, the authors of the amendment weren’t really referring to or thinking about those who enter the country illegally.

    Furthermore, from the excerpt in K’s comment above:

    [The 14th amendment] 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 person.

    Are the terms “foreigner” and “Alien” actually being used as interchangable and referring to the same class of person twice? And if so why?

    Does the clause “who belong to the families of ambassadors OR foreign ministers accredited to the government of the United States,” refer to Alien or both foreigner and alien and if it is meant to referr to both terms, why use the term foreign within the clause itself?

    Of course, as evidenced by the “of course” statement in the 1st line of the paragraph, this should be as obvious as the nose on your face. My question is, why isn’t it?

    Someone here on Redstate uses the tag which I will attempt to remember correctly:

    Grammer is important
    Let’s Eat Grandma
    Let’s eat, Grandma

    Very True

    • Achance

      and I don’t think it would have been much of an issue in 1868. I did a research paper on the passage of the 14th for a Con Law class. The real issues with the 14th were first and foremost repudiating CS war debt and guaranteeing US war debt in gold rather than paper dollars and in establishing a National citizenship for the freed staves so that the former slave states couldn’t at the state level deprive them of the rights of citizenship all over again.

      All my books are packed up so I’m working from memory. The National citizenship issue stems from the fact that the other two Reconstruction amendments leave it somewhat unsettled as to what the status of the former slaves really is because they contemplate reducing a state’s Congressional representation if it deprives any citizens of that state of the rights of citizenship. This, of course, addresses the infamous 3/5ths rule by which slaves were counted as 3/5ths of a person for Congressional representation purposes but had no political rights thus greatly enhanceing the political power of whites in The South. Clearly, it, the 13th I think, contemplates that if a state does not give full political rights to former slaves, its Congressional representation will be reduced by the number of those persons not granted full political rights.

      You have to remember that in 1868 the Southern border was mostly just a legal fiction and the northern border wasn’t really even established. Though Alaska was purchased in 1867, as late as the Gold Rush days of the late 1890s and early 1900s neither the US nor Canada had a defined border and the RCMP and US law enforcement and troops had a very fluid presence in Alaska and the Yukon and British Columbia. Even today it is pretty much an “honor system” to check in with Customs if you cross the Border anywhere other than at the established highway or airport customs stations. I suspect that you could have fairly easily sneaked into the US most anywhere but there was no social welfare system and voting rights were much more jealously guarded in those days. You also have to remember that most Americans still lived on farms or ranches or in small towns any “new” person would stick out like a sore thumb, and also in those days you didn’t have the ACLU and activist courts preventing the sheriff from coming up to you and asking you the nature of your business in the area and maybe even locking you up if he didn’t like the answer.

      I don’t know much about it but I do know that there was considerable controversy about the rights and especially the land rights of those who had been Mexican citizens with land rights granted by the Mexican government in all the territories acquired in the Mexican Cession and the Gadsen Purchase. I frankly don’t know if these Mexican citizens automatically became US citizens with the Treaties or whether they had to become naturalized US citizens or return to Mexico.

      The issue isn’t new, really. In the ’30s Woodie Guthrie was singing about the plight of “Deportees” who came to the US to pick the crops and work in construction and domestic service. The difference is that with the greatly expanded social welfare and education systems after WWII it became much more profitable to be in the US than to be in Mexico unless you were very well fixed in Mexico. Until the New Deal and really after WWII, if you came to the US you had to work, have a support network, or starve. Now, you just glom on to the welfare system and you’re living better than you had been in Mexico.

      • aesthete

        and cessation of northern Mexican territories, the Mexicans formerly living in those areas were given the choice of living in the US for a year and then becoming citizens, or packing their bags and heading back to Mexico. There really weren’t that many Mexicans in the northern territories to begin with the exception of California (one of the reasons Mexico tried to get Americans to immigrate to what’s now the state of Texas was so that the Indians in the region would be pacified by said Americans), and lots of the moneyed and noble class went down to Mexico. The Mexicans who remained and became citizens were poor, overwhelmingly Californian and New Mexican, didn’t understand English, and thus had a rough time of it at first (though not as rough as either the Irish or other immigrant groups). Land grants and property claims made by the Mexicans were inconsistently honored by the US, though to be fair to the US, the version of the Treaty of Guadalupe-Hidalgo that they signed didn’t have a proviso wherein they pledged to protect any land claims; spoils of the victor and all that. There weren’t enough Mexican citizens to make a difference any which way, especially with the monsoon of American settlers coming down to populate the regions, and the vast majority of them integrated alright under the territories.

        • Achance

          The big Mexican land grant dons had a pretty good life in California. The Americans had been encroaching but it was mostly for trade. At that time you had the confluence of the old established empires and the agressive new one in California and the West Coast up to Canada and Alaska. The Russians had the northern coas well into Californiat. The British had the Northern interior and the seas if they wanted it, plus the Sandwich Islands (Hawaii) effectively. The Spanish had the southern interior and coast. Typically, the Americans didn’t care who claimed to own it; they came to trap, mine, and trade, later to farm and ranch.

          The dream of cities of gold that had motivated colonial expansion into North America had been elusive for over 300 years. The first gold strike in North America was at Dahlonega, Georgia and early American gold coinage came from there, but there wasn’t much because the Eastern US to this day has little mineral wealth. That all changed in 1849 with the discovery of substantial quantities of gold in the recently acquired California Territory. The Americans poured into the West Coast territories and in terms of specie, the US quickly became the richest nation in the World. Those contented Spanish Dons quickly became an irrelvance. The Russians retreated to Alaska where they held out a little while longer until they made a virtue of necessity by selling Alaska at wholesale. The Democrats touted 54’40 or Fight, taking much of Britain’s southern Canadian territory in The West; cooler heads prevailed on that one, plus the US got busy soon after with a fairly serious war. Those were interesting times!

          • aesthete

            Our various skirmishes with Canada, and the general dickering over our borders, was certainly interesting. Post-Mexican War, Jefferson Davis wanted us to demand a big chunk of the northern Mexican states, a motion that lost narrowly in Congress. The antebellum South actually had quite a bit of interest in Caribbean and Mexican expansion, but you already knew that. At any rate, it’s pretty fascinating to see just how much of our foreign policy and expansion was more a product of our government trying to catch up with our settlers! Heck, part of the reason that the Revolutionary War was fought was to let American settlers run around past the Northwest Territories.

            On the subject of the colonies, one problem with Russian America, as with many of their other ventures, was piss-poor upper political and private management. At one point Russia mandated that upper management for Russian Alaska be naval officers; obviously, those officers didn’t know the first thing about fur trapping or natives, and consequently, the settlement’s profitability took a massive hit. Ditto their Hawaiian and Californian settlements; they were very inconsistently managed. What’s more, they were terrible at attracting business partnership. Say what you will about the Dutch and British colonization ventures; they at least rent-sought efficiently and had business interest in their ventures to spare!

          • Achance

            http://www.amazon.com/Otter-Skins-Boston-Ships-China/dp/0773508295/ref=sr_1_fkmr1_1?ie=UTF8&qid=1281988563&sr=1-1-fkmr1

            The Sea Otter changed the World.

            The most interesting irony is how the British wound up mostly paying for Alaska. The Civil War didn’t end on April 12, 1865, at Appomattox Courthouse. It ended in Liverpool, England in, I think, October of 1865. The British-built Sea Lion slipped out of England to Bermuda where she was armed and became the Confederate States Ship Shenandoah. She sallied out into the Trade Wind routes and turned east towards Asia. She predated on US shipping without great success, the CSS Alabama had pretty much chased the US off the seas. She turned up the Asian coast and came to Alaska in June/July of ’65. No radio in those days so she didn’t know she really was now the Pirate Ship the US had been calling her. She encountered the US whaling fleet off Kotzebue, Alaska and destroyed it. Returning south, she encountered a British Mail Ship and got the news that she no longer had a country. She stowed her guns, boarded up her gun ports, and, rather than her intended mission of bombarding San Franciso, headed around Cape Horn with the entire US and British Navies looking for her. She made it around the Horn and through the South and North Atlantic and sailed into Liverpool where she surrendered her colors to the US Consul.

            In the Alabama Claims Case, the US was awarded 6.8 Million Dollars from England for the damage done off Alaska by the English-built CSS Shenandoah. So, Great Britain paid all but $400, 000 of the $7.2 Million the US paid Russia for Alaska. It is believed that the entire cost was recaptured from otter fur and whaling in the first year or so of US ownership.

          • aesthete

            I knew that sea otter skins played a role in Russian colonization, but not the whole story about the CSS Shenandoah. I’ll have to read that book.

          • Achance

            The Chinese only wanted silver and gold. First that was anathema to mercantile capitalists and second, none of them had much specie. Except, the Chinese really, really liked Alaskan sea otter fur; it was pretty much their ultimate luxury product. But, the Chinese and the Russians hated each other and the Chinese would only trade with the Russians at one port well inland on the Amur River. The Russians barely had the shipping to feed their fur-trading colony in Alaska and the Pacific Northwest, so they had one Helluva time turning the sea otter fur into trade goods. Enter the Americans.

            Most of the trade was Quaker ship owners out of Boston. They built light, relatively shallow-draft vessels that didn’t require much crew. The crew all signed on for “shares” of the voyage. They would stock up with staples, rum, sugar, guns, and trinkets and set out around The Horn. They’d work their way up the West Coast and trade with the coastal Indians and ultimately with the Russians for otter fur. By the ’30s and ’40s most of the Russian colony’s sustenance was coming from trade with the Americans and others rather than from Russia itself.

            Since the Americans, unlike the British, Spanish, and, especially Russians, enjoyed good relations with China, the Americans could take their otter fur into any port in China and trade for silk, tea, and porcelain. They would then sail around the Cape of Good Hope, trade some of their goods in Europe and bring the rest back to America. The average voyage was four years and the average profit was 4000% percent! Pretty good business, huh?

          • aesthete

            It was Russia and the UK’s own darned fault that they were so hated; neither were what you call subtle with their policy in the region. Probably the only time that Russia and China got along was that brief moment when Maoism and Stalinism were compatible in the PRC (that is to say, while Stalin was around). The English, meanwhile, did their admirable best to interfere in China’s trade and domestic policy. Canada being a part of the British Empire, it isn’t shocking that the Russians’ only partners on that venture were American. From what I understand, the Russian American Company also had a lot of British and Canadian help with their settlements in AK, which made them prime candidates for the purchasing of AK (until Seward swept in and closed the deal, of course).

    • AndrewHyman

      As far as I know, there was no such thing as an illegal immigrant in 1868, because the federal government had no immigration restrictions. So, the framers of the 14th Amendment didn’t specifically talk about it.

      I haven’t looked really closely at pre-1868 laws in England, except for looking at Calvin’s Case. There certainly were instances where people were exiled from England, but I’m not sure if England completely excluded people other than those exiles.