The 14th amendment and original ism.

JSRG · Jan 25, 2025

Oompa Loompa said:
Are you sure about that? Do you have any references or examples?

If someone wants a very deep dive into the subject, I recommend this article:

Originalism and Birthright Citizenship

The first sentence of the Fourteenth Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are cit

papers.ssrn.com

Of course, a nearly 70-page article is an awfully long thing to ask someone to read (though about the first half of it is discussing what it means to technically be "in the United States", which is not at issue here, so one can cut the reading in half if you skip to page 436 with the "subject to the jurisdiction thereof"). So let's attempt a dramatically condensed explanation.

The requested references/examples is the Fourteenth Amendment, or more specifically the Citizenship Clause:

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.

So, if you're born in the United States and subject to its jurisdiction, you're a citizen. This is in the Constitution and cannot be changed except by amendment.

As there isn't any question in the examples you cited are in the United States, we turn to the question of "subject to the jurisdiction thereof". The meaning of this term is that one is subject to the laws of the United States. If someone's from another country and is in the United States, they normally are obligated to follow the laws of the US, and thus are subject to their jurisdiction. This "subject to the jurisdiction thereof" was designed to exclude children of ambassadors--who, in a long tradition, did not have their children be born as citizens of the foreign country--as they are not subject to the laws of the United States. They have diplomatic immunity. Other exceptions are hostile occupying enemy armies (as they have seized jurisdiction themselves) and Native American tribes on their reservations (which were viewed as analogous to foreign countries, though they get citizenship nowadays due to a subsequent law).

So, if someone comes to the US-even on a temporary basis--are they subject to the laws of the United States? Can they be prosecuted if they violate them? Yes, of course. So they are subject to the jurisdiction of the United States, and thus any children they have here are citizens.

The most relevant caselaw is United States v. Wong Kim Ark, which concerned the children of two Chinese immigrants who were living in the US. After visiting China he wasn't allowed to come back as the government alleged he wasn't a citizen, and the whole thing went to the Supreme Court who ruled that yes, he was. This was decided about 125 years ago and is fairly longstanding precedent. Some try to differentiate "temporary" visitors from that case because his parents had a more permanent domicile. But the decision gives no indication that I see that this mattered at all, and seems an artificial designation created after the fact. And how "temporary" one's presence in the United States is is irrelevant when it comes to whether you are subject to its laws.

JSRG · Jan 25, 2025

Goonie said:
Interestingly I believe some of the judges in the Wong Kim Ark case, were sympathetic to the idea that a baby being born just passing through the USA should not qualify for citizenship, I saw that on one of the threads.

I am not sure what you are referring to, unless you are referring to the dissent (who of course were going to disagree with the decision). Can you explain further what you are referring to?

Goonie · Jan 25, 2025

JSRG said:
I am not sure what you are referring to, unless you are referring to the dissent (who of course were going to disagree with the decision). Can you explain further what you are referring to?

That might be it, my bad I was just remembering badly something I'd read on one of these threads.

SimplyMe · Jan 25, 2025

eleos1954 said:
Just saying It is questionable ... none the less

well is the birth of a baby attached to the "soil" (physical location) or the citizenship of the parent?

Example would be military families in foreign countries. There is a special process they must go through to actually receive a US birth certificate ... they weren't born "physically on US soil" ... so it reverts back to the citizenship status of the parent.

So ... the way it is now ... the birth of the baby does not change the citizenship status of the parent, nor should it.

Like I said ... it's a conundrum.

We should always be open to revisiting things .... nothing wrong with it.

It's not a conundrum, the child will have dual citizenship, also gaining the same citizenship rights as the parent in their home country. Additionally, as a dependent child, they will go back with the parents to the home country when their visit is over. That the child has US Citizenship in addition to the country of their parents isn't really an issue, nor will it typically come into play (at least for tourists) unless the child decides they want to come to the US as an adult.

Valletta · Jan 25, 2025

eleos1954 said:
The dispute is under this phrase

subject to the jurisdiction thereof,

the interpretation of "birth right"

It needs to go back to the Supreme Court and be revisited.

Quite honestly .... the interpretation don't make sense. I mean technically then if a non-citizen has a baby in the US then the baby is considered a citizen but the parent is not .... so the parent(s) are subject to non citizens requirements but the baby is not. Technically then ... the parent(s) could be deported and the baby not. So ... that would put the parent(s) in the position of being forced to be become a US citizen ... that certainly can not be right. Because a person has a baby here don't make the parent(s) citizens so why should it be for the baby? Anyways ... I believe it will go back to the Supreme Court.

This is interesting ...
View attachment 360185

It was clear that the framers(by their own words) of that wording in the amendment did not consider that children born in the United States of illegal aliens were citizens. The intent is that the parents must be loyal to the United States.

comana · Jan 25, 2025

Valletta said:
It was clear that the framers(by their own words) of that wording in the amendment did not consider that children born in the United States of illegal aliens were citizens. The intent is that the parents must be loyal to the United States.

Those here illegally can still be loyal to the US.

Valletta · Jan 25, 2025

comana said:
Those here illegally can still be loyal to the US.

Of course no one can judge what is in another person's heart. What evidence is there that that person's allegiance is to the United States? Has the person decided to be subject to our laws? It seems to me that children of foreign diplomats at embassies here would not qualify, nor those in our country illegally.

Oompa Loompa · Jan 25, 2025

JSRG said:
If someone wants a very deep dive into the subject, I recommend this article:

Originalism and Birthright Citizenship

The first sentence of the Fourteenth Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are cit

papers.ssrn.com

Of course, a nearly 70-page article is an awfully long thing to ask someone to read (though about the first half of it is discussing what it means to technically be "in the United States", which is not at issue here, so one can cut the reading in half if you skip to page 436 with the "subject to the jurisdiction thereof"). So let's often a dramatically condensed explanation.

The requested references/examples is the Fourteenth Amendment, or more specifically the Citizenship Clause:

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.

So, if you're born in the United States and subject to its jurisdiction, you're a citizen. This is in the Constitution and cannot be changed except by amendment.

As there isn't any question in the examples you cited are in the United States, we turn to the question of "subject to the jurisdiction thereof". The meaning of this term is that one is subject to the laws of the United States. If someone's from another country and is in the United States, they normally are obligated to follow the laws of the US, and thus are subject to their jurisdiction. This "subject to the jurisdiction thereof" was designed to exclude children of ambassadors--who, in a long tradition, did not have their children be born as citizens of the foreign country--as they are not subject to the laws of the United States. They have diplomatic immunity. Other exceptions are hostile occupying enemy armies (as they have seized jurisdiction themselves) and Native American tribes on their reservations (which were viewed as analogous to foreign countries, though they get citizenship nowadays due to a subsequent law).

So, if someone comes to the US-even on a temporary basis--are they subject to the laws of the United States? Can they be prosecuted if they violate them? Yes, of course. So they are subject to the jurisdiction of the United States, and thus any children they have here are citizens.

The most relevant caselaw is United States v. Wong Kim Ark, which concerned the children of two Chinese immigrants who were living in the US. After visiting China he wasn't allowed to come back as the government alleged he wasn't a citizen, and the whole thing went to the Supreme Court who ruled that yes, he was. This was decided about 125 years ago and is fairly longstanding precedent. Some try to differentiate "temporary" visitors from that case because his parents had a more permanent domicile. But the decision gives no indication that I see that this mattered at all, and seems an artificial designation created after the fact. And how "temporary" one's presence in the United States is is irrelevant when it comes to whether you are subject to its laws.

Thank you.

comana · Jan 25, 2025

Valletta said:
Of course no one can judge what is in another person's heart. What evidence is there that that person's allegiance is to the United States? Has the person decided to be subject to our laws? It seems to me that children of foreign diplomats at embassies here would not qualify, nor those in our country illegally.

The amendment doesn’t say anything about loyalty though. Everyone in our border except for diplomats and their families, are subject to our laws.

Birthright citizenship has come to a point of perhaps unintended consequences of giving citizenship to those who are born to persons not legally residing within our borders, but until a new amendment override the current, this is the law of the land.

RocksInMyHead · Jan 25, 2025

Goonie said:
Interestingly I believe some of the judges in the Wong Kim Ark case, were sympathetic to the idea that a baby being born just passing through the USA should not qualify for citizenship, I saw that on one of the threads.

I don't know that they were specifically sympathetic to that idea, as the ruling doesn't mention it, but I did comment that their ruling made a point of calling out the fact that Wong Kim Ark's parents were established residents of California - which could in turn be grounds to challenge the idea of "birth tourism." But you'd still have to contend with the plain text of the 14th amendment.

JSRG · Jan 25, 2025

Valletta said:
It was clear that the framers(by their own words) of that wording in the amendment did not consider that children born in the United States of illegal aliens were citizens. The intent is that the parents must be loyal to the United States.

You say "by their own words". What "words" are those? Please provide them.

Valletta · Jan 25, 2025

comana said:
The amendment doesn’t say anything about loyalty though. Everyone in our border except for diplomats and their families, are subject to our laws.

Birthright citizenship has come to a point of perhaps unintended consequences of giving citizenship to those who are born to persons not legally residing within our borders, but until a new amendment override the current, this is the law of the land.

The amendment indeed did have unintended consequences, some began to read it as if "and subject to the jurisdiction thereof," (which means allegiance) was not in the amendment and thus considered if you were born here you were a citizen. However, unless changed it remains the law of the land.

RocksInMyHead · Jan 25, 2025

Valletta said:
It was clear that the framers(by their own words) of that wording in the amendment did not consider that children born in the United States of illegal aliens were citizens.

James Ho's essay addresses that misconception:

First, they quote Howard’s introductory remarks to state that birthright citizenship “will not, of course, include … foreigners.” But that reads Howard’s reference to “aliens, who belong to the families of ambassadors or foreign ministers” out of the sentence. It also renders completely meaningless the subsequent dialogue between Senators Cowan and Conness over the wisdom of extending birthright citizenship to the children of Chinese immigrants and Gypsies.

Punctuation is important, y'all. As is context.

Valletta · Jan 25, 2025

RocksInMyHead said:
I don't know that they were specifically sympathetic to that idea, as the ruling doesn't mention it, but I did comment that their ruling made a point of calling out the fact that Wong Kim Ark's parents were established residents of California - which could in turn be grounds to challenge the idea of "birth tourism." But you'd still have to contend with the plain text of the 14th amendment.

Yes, that pesky "and subject to the jurisdiction thereof" is plainly there.

comana · Jan 25, 2025

Valletta said:
The amendment indeed did have unintended consequences, some began to read it as if "and subject to the jurisdiction thereof," (which means allegiance) was not in the amendment and thus considered if you were born here you were a citizen. However, unless changed it remains the law of the land.

That is for the USSC to determine. Ultimately this needs a new amendment.

RocksInMyHead · Jan 25, 2025

Valletta said:
Yes, that pesky "and subject to the jurisdiction thereof" is plainly there.

Also addressed by Ho:

Second, proponents claim that the Citizenship Clause protects only the children of persons who owe complete allegiance to the U.S. – namely, U.S. citizens. To support this contention, proponents cite stray references to “allegiance” by Senator Trumbull (a presumed authority in light of his Judiciary Committee chairmanship) and others, as well as the text of the 1866 Civil Rights Act. But the text of the Citizenship Clause requires “ jurisdiction,” not “allegiance.” Nor did Congress propose that “all persons born to U.S. citizens are citizens of the United States.” To the contrary, Senator Cowan opposed the Citizenship Clause precisely because it would extend birthright citizenship to the children of people who … owe [my state] no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own …; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him.30 Moreover, Cowan’s unambiguous rejection of “allegiance” formed an essential part of the consensus understanding of the Howard text. By contrast, the stray references by Trumbull and others to “allegiance” were made during the debate over tribal sovereignty, not alienage generally. Indeed, Trumbull himself confirmed that the Howard text covers all persons “who are subject to our laws.”

You're not coming up with any novel arguments here. I highly suggest reading the essay I linked in my previous post.

JSRG · Jan 25, 2025

Valletta said:
Does anyone recall the name of the head of the judiciary committee at the time, the name escapes me for the moment?

The Fourteenth Amendment was proposed by Congress in 1866. Looking it up on Wikipedia, that would have been James Wilson for the House and Lyman Trumbull in the Senate.

Trumbull made a number of comments regarding the Citizenship Clause, so you'll have to specify exactly which one you think shows (by your own words) "It was clear that the framers(by their own words) of that wording in the amendment did not consider that children born in the United States of illegal aliens were citizens."

Valletta · Jan 25, 2025

RocksInMyHead said:
James Ho's essay addresses that misconception:

Punctuation is important, y'all. As is context.

Don't be hoodwinked. Here is a good synopsis, my highlighting:

Then, too, there is the well-documented understanding of
citizenship by Rep. John Bingham (R-OH), who is often called “the
father of the 14th Amendment” because of his great involvement in
its drafting.52 Consider Bingham’s discussion of constitutional
citizenship during the drafting of Oregon’s 1857 state constitution:
Who are the citizens of the United States? Sir, they are those,
and those only, who owe allegiance to the Government of the
United States; not the base [perpetual] allegiance imposed
upon the Saxon by the Conqueror, which required him to
meditate in solitude and darkness at the sound of the curfew;
but the allegiance which requires the citizen not only to obey,
but to support and defend, if need be with his life, the
Constitution of his country. All free persons born and domiciled
within the jurisdiction of the United States, are citizens of the
United States from birth . . . . 53
His understanding of allegiance and domicile as part and
parcel with citizenship was documented again in 1862, during
debates over emancipation within the District of Columbia:
Who are natural-born citizens but those born within the Republic?
Those born within the Republic, whether black or white, are
citizens by birth—natural-born citizens . . . . [A]ll other persons
born within the Republic, of parents owing allegiance to no
other sovereignty, are natural-born citizens.54

https://static.heritage.org/legal-and-judicial/birthright-citizenship/Law%20Review%20Final%20Print.pdf

JSRG · Jan 25, 2025

Valletta said:
Don't be hoodwinked. Here is a good synopsis, my highlighting:

It is not clear how this shows they were "hoodwinked", given they were referring to someone else's comments. After all, you were very vague as to who you were referring to, and so they made a guess and responded to it. They were talking about Howard--now you suddenly bring in Bingham. Now, maybe you meant Bingham and they jumped the gun, but you should have specified who you were referring to.

In any event, let's look at what you offer.

Valletta said:
Then, too, there is the well-documented understanding of
citizenship by Rep. John Bingham (R-OH), who is often called “the
father of the 14th Amendment” because of his great involvement in
its drafting.52 Consider Bingham’s discussion of constitutional
citizenship during the drafting of Oregon’s 1857 state constitution:
Who are the citizens of the United States? Sir, they are those,
and those only, who owe allegiance to the Government of the
United States; not the base [perpetual] allegiance imposed
upon the Saxon by the Conqueror, which required him to
meditate in solitude and darkness at the sound of the curfew;
but the allegiance which requires the citizen not only to obey,
but to support and defend, if need be with his life, the
Constitution of his country. All free persons born and domiciled
within the jurisdiction of the United States, are citizens of the
United States from birth . . . . 53

Firstly, it would be preferable had you fixed the formatting here. Anyway, Bingham was important in regards to some portions of the Fourteenth Amendment, but the Citizenship Clause was introduced by Howard, not him.

But regardless of that, even with what is provided, how does this disprove anything about the Citizenship Clause? The portion you underline is talking about the duties of citizens (with some rhetorical flourish on his part). But the Fourteenth Amendment does not say "people with duties of a citizen" become citizens, but that those "subject to the jurisdiction" of the United States, in reference to the requirement to follow the laws.

Indeed, this argument that you offer seems to be the actual hoodwink, by talking about duties of someone after they become a citizen, and then trying to claim this is somehow a requirement for someone to become a citizen, even though the duties only occur afterwards.

Valletta said:
His understanding of allegiance and domicile as part and
parcel with citizenship was documented again in 1862, during
debates over emancipation within the District of Columbia:
Who are natural-born citizens but those born within the Republic?
Those born within the Republic, whether black or white, are
citizens by birth—natural-born citizens . . . . [A]ll other persons
born within the Republic, of parents owing allegiance to no
other sovereignty, are natural-born citizens.54

This underlining portion seems to simply be referring to the issues of ambassadors. It's perhaps not the best way to phrase it, but this is also a brief remark in a speech which was mostly about other matters. I took a look at it in context and mostly he's talking about how citizenship isn't--or at least shouldn't--be restricted by someone's skin color.

Valletta · Jan 26, 2025

JSRG said:
It is not clear how this shows they were "hoodwinked", given they were referring to someone else's comments. After all, you were very vague as to who you were referring to, and so they made a guess and responded to it. They were talking about Howard--now you suddenly bring in Bingham. Now, maybe you meant Bingham and they jumped the gun, but you should have specified who you were referring to.

In any event, let's look at what you offer.

Firstly, it would be preferable had you fixed the formatting here. Anyway, Bingham was important in regards to some portions of the Fourteenth Amendment, but the Citizenship Clause was introduced by Howard, not him.

But regardless of that, even with what is provided, how does this disprove anything about the Citizenship Clause? The portion you underline is talking about the duties of citizens (with some rhetorical flourish on his part). But the Fourteenth Amendment does not say "people with duties of a citizen" become citizens, but that those "subject to the jurisdiction" of the United States, in reference to the requirement to follow the laws.

Indeed, this argument that you offer seems to be the actual hoodwink, by talking about duties of someone after they become a citizen, and then trying to claim this is somehow a requirement for someone to become a citizen, even though the duties only occur afterwards.

This underlining portion seems to simply be referring to the issues of ambassadors. It's perhaps not the best way to phrase it, but this is also a brief remark in a speech which was mostly about other matters. I took a look at it in context and mostly he's talking about how citizenship isn't--or at least shouldn't--be restricted by someone's skin color.

Look at the context--this amendment is short and to the point about who is a citizen. It is NOT an essay or remark on some of the many duties of U.S. citizens.

The 14th amendment and original ism.

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