Subject to the Jurisdiction Thereof
What “Subject to the Jurisdiction Thereof” Really Means
By P.A. Madison
I have been bombarded lately with requests to revisit the meaning of the Fourteenth Amendments “subject to the jurisdiction thereof” language. Some desire confirmation whether the language simply implies temporary obedience to laws, while others want to confirm whether it requires something more direct and substantial. I’ll spare the reader a lengthy treatise by making this short and to the point.
Perhaps the first most important thing to understand about national birthright is that there was no national birthright rule until the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution.
One reason for the absence of an early-defined national birthright rule is that States had decided for themselves who were its citizens by virtue of being born within the limits of the State. Prior to the 14th amendment citizens of the United States were strictly defined as citizens of the States.
After the Revolution, States retained only those portions of common law that were applicable to their local circumstances. The practice of England at the time was every person born within the realm of the King was a natural born subject by virtue of birth alone. In the United States, such a rule was not strictly followed as children born to black slaves, transient aliens, or Indians, followed the condition of their father.
Virginia for example, enacted an early birthright law sponsored by Thomas Jefferson in May of 1779 that specifically required the father to be a citizen: “[A]ll infants, whenever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth…shall be deemed citizens of this Commonwealth…”
What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & anti-republican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law.
So what was to be the premise behind America’s first and only constitutional birthright declaration in the year 1866? Simply all children born to parents who owed no foreign allegiance were to be citizens of the United States, that is to say, not only must a child be born within the limits of the United States, but born within the complete allegiance of the United States as a nation – not merely its laws only.
In other words, there is no such thing as American citizenship without allegiance to the nation. Why make citizens of those who owe no allegiance to the country, who might join the forces of another country against you? This goes to the core of American allegiance.
Many make the silly mistake of confusing temporary allegiance to a countries laws under the law of nations with that of allegiance to a nation. In school we pledge allegiance to the flag and the “Republic for which it stands,” not pledge our allegiance to local traffic laws. No one during the eighteenth and nineteenth centuries confused owing allegiance to the laws with that of owing allegiance to a nation.
If anyone needs any confirmation of the above conclusion, need only to view Sec. 1992 of U.S. Revised Statutes the same Congress had adopted as national law in the year 1866: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Sen. Trumbull stated during the drafting of the above national birthright law that it was the goal to “make citizens of everybody born in the United States who owe allegiance to the United States.”
Sen. Trumbull felt the words, “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens” would be more than sufficient to fulfill this goal. However, after investigation it was found the United States had no authority to make citizens of those temporarily residing in the United States who owed only a “temporary allegiance.”
This is why it was later demanded that a complete and immediate allegiance – that is, “not owing allegiance to anyone else” – be established under a constitutional amendment and not merely a temporary allegiance.
Framer of the Fourteenth Amendments first section, John Bingham, said this language meant “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” As applied to aliens, this meant those aliens who first declared their intent to become citizens of the United States, and who had renounced their allegiance to some other sovereignty as required under U.S. naturalization laws.
During the debates of the Fourteenth Amendment’s citizenship clause, both its primary framers, Sen. Jacob Howard and Sen. Lyman Trumbull listened to concerns of including such persons as Chinese, Mongolians, and Gypsies to citizenship. Additionally, Sen. Fessenden raised the question of persons born of parents from abroad temporarily in this country, and of course, the question of Indians. Chinese, if one remembers their history, where a major concern on the part of citizens on the pacific coast and occupied a great deal of the news of the time (mostly all negative).
Sen. Trumbull attempted to assure Senators that Indians were not “subject to the jurisdiction” of the United States. Sen. Johnson argued that Sen. Trumbull was in error in regards to the Indian’s not being under the jurisdiction of the United States. This must have raised concerns with Howard because he strongly made it known that he had no intention whatsoever to confer citizenship upon the Indians under his amendment, no matter if born within or outside of their tribal lands.
Sen. Trumbull and Sen. Howard then settled upon a construction for “subject to the jurisdiction thereof,” with Trumbull declaring:
The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
Sen. Trumbull further added, “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’” Sen. Jacob Howard agreed:
[I] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
The above statements by Howard and Trumbull give us a good idea of what “subject to the jurisdiction thereof” as employed under the Fourteenth Amendment means: Absence of owing any allegiance to any other foreign power, which in return allows the United States to exercise full and complete jurisdiction over the person.
To understand how an alien might not owe allegiance to some other sovereignty upon arrival to this country, one need to look no further then the naturalization laws of the United States. Under United States law, an alien was required to make a declaration of his intention to become a citizen, and renounce all allegiance to his former government two years before he could make a final application.
Therefore, it does not require a leap of faith to understand what persons, other than citizens themselves, under the Fourteenth Amendment are citizens of the United States by birth: Those aliens who have come with the intent to become U.S. citizens, who had first compiled with the laws of naturalization in declaring their intent and renounce all prior allegiances.
Sen. Trumbull further restates the the goal of the language: “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens…” He could only be referring to the laws of naturalization and consent to expatriation by the immigrant in order for him to come completely within the jurisdiction of the United States and its laws, i.e., he cannot be a subject of another nation.
On July 18, 1868 Sen. Howard explained expatriation to mean “the emigration of the foreigner from his native land to some other land non animo revertendi; that is, with the intention of changing his domicile and making his permanent home in the country to which he emigrates.” Sen. Howard explained that expatriation could only be complete through law alone, and not through any act of the immigrant acting on his own outside of the law.
A citizen owes the same quality of allegiance to their nation of origin as does their country’s ambassador and foreign ministers while within the limits of another nation unless they freely decide to renounce their allegiance in accordance to law. In other words, it would be preposterous to consider under the meaning given to “subject to the jurisdiction thereof” that a French subject visiting the United States was not a subject of France, but completely subject to the will of the United States while within the limits of the nation without first consenting to expatriation.
The United States has always, as a matter of law, considered new arrivals subjects of the country from which they owed their allegiance. As a matter of law, new arrivals were recognized as bearing the allegiance of the country of their origin. No more is this evident then with the recording of the certificate of intent to become a citizen of the United States:
James Spratt, a native of Ireland, aged about twenty-six years, bearing allegiance to the king of Great Britain and Ireland, who emigrated from Ireland and arrived in the United States on the 1st of June 1812, and intends to reside within the jurisdiction and under the government of the United States, makes report of himself for naturalization according to the acts of congress in that case made and provided, the 14th of April anno domini 1817, in the clerk’s office of the circuit court of the district of Columbia, for the county of Washington: and on the 14th of May 1817, the said James Spratt personally appeared in open court, and declared on oath, that it is his intention to become a citizen of the United States, and to renounce all allegiance and fidelity to every foreign prince, &c.
James Spratt would be considered completely subject to the jurisdiction of the United States with owing no other nation his allegiance under the Fourteenth Amendment. Children born to him would under the Fourteenth Amendment, be citizens of the United States even though he might not yet been awarded citizenship himself. It should be pointed out that woman were not naturalized individually, but only became naturalized by virtue of marriage to a male who became naturalized himself.
Those who were not qualified under naturalization laws of the United States to become citizens of the United States would be unable to renounce their prior allegiances and consent to the full jurisdiction of the United States as needed to become a citizen. This is how children born to Indian’s and Asians were prevented from becoming citizens themselves under the language chosen.
What changed after the adoption of the Fourteenth Amendment? Not much really. States adopted laws that excluded either “transient aliens” or those not resident of the State. New York had already a 1857 code that read, “All persons born in this state, and resident within it, except the children of transient aliens, and of alien public ministers and consuls…”
After the adoption of the Fourteenth Amendment, California, Montana and South Dakota adopted identical language as New York.
In 1898, some thirty years after the adoption of the Fourteenth Amendment, the United States argued a Chinese man born to Chinese parents in San Francisco could not be a citizen of the United States because his parents were not subjects of the United States at the time of his birth, but the subjects of the emperor of China. (U.S. v. Wong Kim Ark)
The Government had it right and the Supreme Court got it all wrong (deliberately) by deciding the language under old English common law, something the adopted national rule departed sharply from. Additionally, Howard made no reference to citizenship as having anything to do with common law, but virtue of “natural law” and “national law.”
Under old English common law, neither expressed allegiance or, the lack of it, was a requirement for birthright. The Thirty-Ninth congress by contrast, made the lack of owing allegiance to some other sovereignty an advance prerequisite, and by doing so, departed from the common law rule.
If there is one inescapable truth to the text and debates, it is this: When Congress decided to require potential citizens to first be subject to the complete jurisdiction of the United States they by default excluded all citizens of other nations temporarily residing in the U.S. who had no intention of becoming citizens themselves or, disqualified of doing so under naturalization laws. This was no oversight because it was too simple to declare the common law rule of jus soli if indeed that was truly the desired goal by these very competent lawyers (both Howard and Trumbull were lawyers). Instead, there were classes of persons no one desired to make citizens, while also being classes of persons national law prohibited from becoming citizens.
Aaron Sargent, a Representative from California during the Naturalization Act of 1870 debates said the Fourteenth Amendment’s citizenship clause was not a de-facto right for aliens to obtain citizenship. No one came forward to dispute this conclusion.
Perhaps because he was absolutely correct.