Some think the issue of birthright citizenship was settled in 1868 with the ratification of the 14th Amendment, which reads in part:
“All persons born or naturalized in the United States … are citizens of the United States and of the State wherein they reside.”
Why is this an issue? Because of the language in the ellipsis above, which many leave out when quoting the Amendment: “and subject to the jurisdiction thereof.”
During the birthright citizenship argument in Trump v. Barbara before the Supreme Court last week, Justice Ketanji Brown Jackson commented something along the lines of, “[I]f I steal a wallet in Japan, I am subject to Japanese laws … in a sense, it’s allegiance…..” Yes, but that makes the “subject to the jurisdiction” phrase redundant, and in law there is a presumption against redundancy. The phrase was included for a reason. What is that reason?
To answer that question, we need to examine the purpose of the 14th Amendment. The purpose was not to provide citizenship for the children of illegal aliens. It was intended to grant citizenship to the children of former slaves, many of whom had been in the United States for generations. Children of former slaves were not automatically citizens; in fact, Dred Scott v. Sandford(1857) held that blacks could not become citizens. The citizenship clause was included to overcome this decision.
But if the framers of the Amendment intended to confer birthright citizenship upon everyone born in the U.S., the jurisdiction phrase would have been unnecessary. The phrase imposes another condition for citizenship: the person must be subject to the jurisdiction of the United States. What does this mean? The answer may be found in the exceptions.
Automatic birthright citizenship would have included citizenship for American Indians, and many Indians did not want that. Indian tribes were considered nations within this nation, and many Indians insisted that they were citizens of their respective tribes rather than of the United States.
Elk v. Wilkins (1884) held that even if an Indian renounced his tribal citizenship, he did not automatically become a U.S. citizen. Rather, paragraph five of the 14th Amendment provided that Congress could enforce the amendment by appropriate legislation, so Congress had authority to set the terms under which Indians could become citizens. Beginning in the 1870s, Congress began negotiating with various tribes to set terms under which their members could become citizens. Some wanted citizenship, but others did not.
When the United States entered World War I in 1917, the issue of Indian citizenship was still unsettled. About 12,000 Indians served in the U.S. armed forces, but others were reluctant to serve under the flag of the United States, which they considered a “foreign” power. Accordingly, the Haudenosaunee (Iroquois Confederacy) independently declared war on Germany and the Axis powers, and their chiefs read their declaration of war on the steps of the U.S. Capitol. Their men were therefore able to serve under their tribal leadership as allies of the United States.
By 1941, the issue of Indian citizenship was settled. But when the United States entered World War II, some of these tribes noted that they had not been included in the Armistice of 1918 and therefore they were still at war with Germany! Several other tribes declared war on Germany at that time, including the Lakota and the Chippewa.
The point is, just being born in the United States does not make a person subject to the jurisdiction of the United States. The exact meaning of the term is difficult to define, but Section 5 of the 14th Amendment may delegate the power to define jurisdiction to Congress rather than to the president.
This is not a slam-dunk case for either side. It seems clear, however, that the framers of the 14th Amendment did not intend to confer citizenship on everyone who is born in the United States, even if that person’s parents were not citizens, were not here legally, or did not intend to reside here permanently.
“It’s a new world” in which 8 billion people are “one plane ride away” from having a child who’s a U.S. citizen,” Solicitor General John Sauer said, arguing for the government’s position.
“It’s a new world. It’s the same Constitution,” Chief Justice Roberts replied.
But that Constitution contains the word “jurisdiction,” which still needs to be defined.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Chairman of the Board of the Plymouth Rock Foundation (plymrock.org). He and his wife Marleen can be reached for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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