The Federalist Blog

James Ho in a Wall Street Journal op-ed repeats common misunderstandings over what “subject to the jurisdiction thereof” under the Fourteenth Amendment was declared to mean by its primary framers, the United States Attorney General and the Supreme Court and concludes any effort by States to refuse citizenship to children born to undocumented aliens to be unconstitutional.

Ho never addresses what the primary framers declared the words to mean but instead singles out a minor discussion between Senators Cowan and Conness over concerns of whether “race” of the parents would play a role in citizenship before the primary authors, Senators Trumbull and Howard discussed the legal effect of the words. By ignoring the legal effect of the words “subject to the jurisdiction thereof” Ho had no difficulty in asserting a “foreign national living in the United States is ‘subject to the jurisdiction thereof’ because he is legally required to obey U.S. law.” In other words, Ho like many argue “subject to the jurisdiction thereof” requires only obedience to U.S. laws by merely setting foot within some State of the union.

The primary framers had a far different take on the legal effect of “subject to the jurisdiction thereof” with Sen. Lyman Trumbull declaring it meant “Not owing allegiance to anybody else.” Not owing allegiance to anybody else is a far different thing then mere observance of local laws.

The other primary author of the bill to define citizenship under the Fourteenth Amendment, Sen. Jacob Howard, said the words “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.” Like Trumbull, Howard isn’t talking about temporary obedience of U.S. laws.

It should be noted that when Sen. Howard said those subject to the jurisdiction thereof “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,” was simply restating District of Columbia law on the subject. The citizenship statutes of District of Columbia read: “All persons born and domiciled within it, except the children of transient aliens, and of alien public ministers and consuls.” *

The condition of the father is what determines whether someone is born an alien or not under law of nature which also children and wives followed under U.S. naturalization law (alien children and wives became citizens under their father/husband).

An 1873 United States Attorney General Opinion confirms this:

The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this [fourteenth] amendment . . . Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.

In other words, mere obedience of the laws does not rise to complete jurisdiction on part of the United States because such obedience does not extend political or military duties to anyone. The court in Elk v. Wilkins reaffirms this understanding by saying the “evident meaning of these last words (subject to the jurisdiction thereof) is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them (U.S.) direct and immediate allegiance.”

Chairman of the House Judiciary Committee, James F. Wilson of Iowa, added this to the discussion of citizenship: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.” Temporary sojourners were considered those with no intent to become naturalized (or disqualified by law or treaty) and permanently reside.

So here we have three sources all in agreement with each other that “subject to the jurisdiction thereof” implies more than mere obedience to the laws but rather means the same complete jurisdiction over U.S. citizens due to their sole allegiance to the United States. One can dispute these facts using the ruling in Wong Kim Ark, but unlike the holding in Elk, Wong Kim Ark suffers from lack of supportive evidence which probably explains why Justice Gray didn’t offer a persuasive argument to how the framers, the Attorney General and himself in Elk could been wrong with the legal effect of “subject to the jurisdiction thereof.”

Mr. Ho claims a coalition of state legislators who endorse denying birthright citizenship to children born to undocumented aliens is an “effort to rewrite U.S. citizenship law from state to state,” and therefore, “unconstitutional.” Mr. Ho might not be aware that States were doing just this after the Fourteenth Amendment had been adopted and there was nothing considered unconstitutional about it.

Many States adopted laws similar to New York and the District of Columbia that singled out children born to “transient aliens” along with children to public ministers and consuls after the Fourteenth Amendment had been adopted. If the nation believed the Fourteenth Amendment was merely a repetition of the English common law rule of birthright then singling out children of transient aliens would easily been seen as running afoul with the Fourteenth Amendment.

One thing all law commentators have been in agreement following the adoption of the Fourteenth Amendment is that it does not make anyone a citizen of a State. It was always up the States to determine what legal requirements constitutes residency because the Fourteenth Amendment leaves legal requirements of residency to the States themselves to determine. Because only members of the nation whom have a political attachment to the country are subject to its jurisdiction, enacting similar laws as New York or the District of Columbia in regards to alien born children is well within the legal authority of the States to do so.

* The phrase “transient aliens” was generally used to refer to aliens other than “resident aliens” who were citizens or subjects of another country who could be in the country for any number of reasons, such as a stopover on an international trip, school, work, etc., who had no intent of becoming citizens or were unable to by law or treaty. A “resident alien” were deemed non-citizens who have come with the intent to permanently reside in a state and who have filed their intent to do so and had taken the oath of allegiance as required by law.