Despite the wishes of some in the United States, children born in the United States become citizens at birth, even though their parents are not citizens, and even though their parents are not legal residents of the United States. That’s the law.
Why is there a problem getting birth certificates for these US citizens in Texas? It comes from the fact that not just anyone can apply for a birth certificate. It has to be the person themself or a parent. The parent has to provide ID, and there’s the rub. The Texas Department of Health has begun enforcing a 2008 rule that says a Mexico consular-issued identification is not acceptable. Aaron Nelson of the San Antonio Express-News writes:
A citizen may request his or her own birth certificate with a driver’s license, or a Social Security card and recent utility bill, for example, but to acquire those documents often calls for a birth certificate.
Like with all such controversies, there is a lawsuit. Read the complaint. Here’s the State’s position.
“Despite the wishes of some in the United States, children born in the United States become citizens at birth, even though their parents are not citizens, and even though their parents are not legal residents of the United States. That’s the law.”
I think the contention from birthers are that these individuals are “Citizens of the United States.” but are not “Natural Born” Citizens. The grandfather clause has run out for “Citizens of the United States.” thus one has to be a “Natural Born” Citizen in order to be eligible to be POTUS. There are various laws and federal statutes that convey citizenship at earth but any law or statute that does that can’t possibly be a “Natural Born” Citizen as that one that needs no law or statute and that their citizenship in based on the Natural Order of things.
There is no such thing as a plain citizen of the united states who is neither natural born nor naturalized.
john never tires of being wrong.
it’s gone from hobby to lifestyle.
I don’t think Dr. C was referring exclusively to birthers here. His statement is true, there are people who get all worked up that the children of immigrants, born here, are citizens.
See, for just one example, the bigoted website numbersusa.com.
john, are you serious? After years and years of debate on this subject, the best authority you can cite to substantiate your view is your personal assertion of “the Natural Order of things”?
His scraping the bottom of the barrel so hard, that he’s hit the floor beneath it! Expect his responses to grow more contrived and stupid.
I think everyone here understands that argument. The problem is, it’s total, absolute, utter bullsh*t.
“Natural born citizen” in the Constitution (which is the fundamental LAW of the land) means whatever it meant to the people drafting the document (also known as the Framers of the Constitution), and to those who ratified it into law.
Most of those people were lawyers, and there was a long-standing framework and legal culture in which they operated. They stood on literally CENTURIES of legal tradition and legal culture.
This may have started as early as King Athelstan, who Wikipedia tells me was the first recognizable King of England, back in the 900s. So by the American Declaration of Independence in 1776, our lawyers had roughly 800 years of legal tradition and terminology to draw on.
Amazon tells me that Blackstone’s Commentaries on the Laws of England spans 1,942 pages. Our American lawyers (note: the exact people who both drafted and ratified our Constitution) were well-trained in law through this exact four-volume encyclopedia of law (which by the way wasn’t just published in England, it was also published in American editions in the Colonies).
So when they used the words “natural born,” they didn’t mean YOUR completely ignorant, baseless, imaginative, dumbass, “gee-it-must-be-some-kinda-subjective-intuitive-‘natural-law’,” uninformed, birther idea of what “natural born” means. They meant what “natural born” had always meant, for CENTURIES, in the entire culture and tradition that they all shared.
And that was what it meant in both English and American law.
Now I don’t expect any of that to sink in, since birthers are as impervious to truth and facts as a Teflon-coated duck’s back is to water. But who know? You just might surprise me.
I’m feeling lucky today. I think I’ll go buy a lottery ticket.
That’s not what I was referring to. There have been bills proposed in Congress to define “jurisdiction” in such away as to exclude the children of undocumented immigrants from US citizenship under the 14th Amendment. Any number of people say that the Supreme Court erred in the Wong decision.
Erred in what way? I don’t think Wong addressed that issue, did it? And having not addressed the issue, how could one say the Court erred on a point it didn’t address?
Yes. the court did address the issue of jurisdiction in Wong, and did so with respect to a person born in the USA with zero citizen parents.
Another straw the bigots cling to is the statement that the Supreme Court has never interpreted the 14th amendment in a case that specifically addressed a person whose parents were in the country illegally.
Yes, I suppose that if Congress passed a law that said that our government has no jurisdiction over illegal immigrants, then the 14th amendment would no longer make their children born here citizens. And yet, I can’t really see the bigots going that far. Or anyone else who still has more than one functioning cerebral neuron.
Deciding Wong was a citizen.
But that leads to other problems. For instance, if the government has no jurisdiction over illegal immigrants, then how can they arrest the illegal immigrants, and deport them back to their country? Can an illegal immigrant commit murder, and get arrested, if the country has no jurisdiction over them?
What those bills do is basically try to define jurisdiction over the illegal immigrant in a certain way just for citizenship. That would most likely be struck down in the courts.
But Wong was not a child of parents illegally in the country. Nor were they here just temporarily, although (if I recall correctly) they did eventually move back to China.
They were legally settled here. They were United States residents. This was their home. I don’t see how Wong necessarily applies.
Nor do I appear to be alone. Quoting from Wikipedia on the case: Since the 1990s, however, controversy has arisen over the longstanding practice of granting automatic citizenship to U.S.-born children of illegal immigrants, and legal scholars disagree over whether the Wong Kim Ark precedent applies when alien parents are in the country illegally.
The only people I’ve seen arguing that the Court erred in Wong is birthers. From where I sit, Wong could be (and is) entirely correct, and we could still exclude the children of illegal immigrants from birthright citizenship, without contradiction in the law.
Pete,
The problem with trying to carve out an exception for illegals in the 14th Amendment is that there wasn’t such a thing as illegal aliens when the 14th Amendment (or the Constitution) was written, therefore there cannot have been any intent to exclude them.
Equally, there cannot have been any intent to include them.
I’m not sure it’s quite true that there wasn’t any such thing as illegal aliens when the 14th Amendment was written. The Alien Act of 1798 gave the President the power to order aliens to depart, and to imprison them if they didn’t, or if they returned.
And there was certainly such a thing as illegal aliens, at least in theory, if not in actual fact, when Wong was decided in 1898. And the Court did note, if I recall, the permanent resident status of Wong’s parents.
From the Wikipedia article on Wong, it seems clear that legal scholars are divided on whether Wong created birthright citizenship, by extension, for the children of illegal aliens. So I would say the issue could well be revisited at some point by the Supreme Court.
Could not the case be made that Wong Kim Ark would have been himself an illegal alien had he lost his case? The Chinese Exclusion Act was in effect which would have barred him from U.S. citizenship and from legal immigration.
Which is why I say that nobody would do this.
And the Steve King bill is so transparent an attempt to amend the Constitution without amending the Constitution, there is no possibility the courts would do anything but laugh at it.
I’d also like to point out that Wikipedia, in saying legal scholars are divided on this issue, only names one: John C. Eastman. I think when one scholar disagrees, that doesn’t really constitute a division. Particularly when that one seems to spend more time pushing right wing causes than being scholarly.
No, it names others as well:
No.
The CEA only dissalowed foreign born Chinese from naturalization. Mr. Wong’s parents were here completely legally.
Persons in the United States who are not US citizens can be deported. Still, it seems clear that it is possible for a person to be in the United States, even born in the United States, and not “subject to the jurisdiction of the United States”; else that clause of the 14th Amendment is entirely redundant and meaningless:
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.
Reading English for comprehension is obviously NOT your long suit. The ONLY people in the United States NOT “subject to the jurisdiction thereof” would be foreign heads of state, diplomats, and occupying troops. The child of any of the above born here would NOT be considered citizens at birth. That is why that clause was added and what it means.
I think that is a very poor argument, since that particular exception is a well-known exclusion to jus soli (while the children of undocumented immigrants is not). The feudal notion of mutual protection and allegiance cannot apply in occupied territory, where there is no protection offered; however, the government will protect any child in the United States, without regard to the immigration status of their parents.
Illegal residents certainly weren’t on the Framers’ minds since the US didn’t have any illegal immigrants until the 19th century.
Are you suggesting that U.S. Code Title VIII, Chapter 12, Subchapter iii, Section 1401(a) is no longer law? Bwhahahahahahaha!
http://uscode.house.gov/view.xhtml?path=/prelim@title8/chapter12/subchapter3&edition=prelim
One of the reasons that there are so many undocumented aliens is because under the mid 19th century prevailing political doctrine of “Manifest Destiny” the United States goaded Mexico into a war which we won and then we took the northern third of the nation of Mexico, giving the U.S. what became the states of California, New Mexico, Arizona, Nevada, Utah, Wyoming and Colorado. If the Mexican state of AltaCaifornia was still Mexico, we’d have Mexicans moving within their nation, not across an international border.
Yes, I’m well aware that’s why the clause was added, and what it means.
Look, simply because you disagree is no reason to resort to insults. Such a tactic on your part doesn’t reflect on my intelligence, although it might reflect on yours.
The fact is, LEGAL SCHOLARS appear to be split on the question of whether “subject to the jurisdiction” of the United States would necessarily apply to children of persons in the country illegally, or not. At the time the clause was written, ALL immigrants into the United States were legal immigrants.
Did the clause cover the children of all immigrants, whether their parents had become citizens or not? Absolutely. But then, at that time, all immigrants were legal immigrants. So you can’t necessarily say that children of illegal immigrants were intended to be included, because that category of persons did not exist and therefore could not reasonably have been contemplated.
In fact, as I seem to recall, I believe there were at least one or two laws passed during the 1800s, by States, effectively denying citizenship to children of transient aliens.
And in the debates for the Civil Rights Act of 1866 (which was the legislative precursor to the 14th Amendment) Rep Wilson of Iowa stated (Cong. Globe, Mar 1, 1866, p. 1116):
Now if you want to take a birther interpretation, then Wilson was drawing a distinction between natural-born citizens and native-born citizens, and saying that children of temporary sojourners were not “natural-born,” but were “only” “native-born” citizens. And that might be the case, although if it is, it would probably mark about the only time in history that anyone ever tried to draw a distinction between “natural born citizens” and “native born citizens.”
Otherwise, it’s possible that Wilson’s words either came out a little bit garbled, or got a little bit garbled in the transcription.
In any event, there was a distinction of some kind perceived, and articulated, between the children of people who actually lived here, whether formally United States citizens or not, and aliens who were simply passing through. What we might well call foreign tourists. And this distinction created, in the mind of Representative Wilson, a difference in the citizenship status of children born to United States residents, and those born to “temporary sojourners.”
From this it might well be argued that it wasn’t necessarily the intention of the Civil Rights Act of 1866 (or of the 14th Amendment that followed) to make citizens of children born to foreign tourists or to foreign nationals temporarily in the United States on business. (There of course were very few of either category in 1866. There may have been some further discussion of this whole matter later on; if there was, and you’re aware of it, then feel free to call my attention to it.)
In any event, it’s not 100% clear what “subject to the jurisdiction of the United States” means, because we face the same problem with that term as our legislators in 1866 faced with the term “citizen” – namely, those who went before us, who used the term in legislation, did not write out a precise definition. Presumably they knew what they meant by it, although even that is not entirely certain.
That being the case, it’s for the US Supreme Court to tell us whether the 14th Amendment necessarily must give citizenship to the children of illegal aliens. To date, they have not done so.
Such protection, however, is a matter of policy. The government could conceivably adopt a policy of deportation with the parents.
As I recall, the common law doctrine that resulted in a person being born an natural born subject relied upon a temporary allegiance of the parents who were within the realm of the King. It was not mere presence on the soil; allegiance was required. And such allegiance required actual obedience to the Sovereign.
Without such allegiance, the children born were not natural born subjects, and the lack of such allegiance was a common thread in the categories excluded: Visiting foreign royalty, ambassadors from foreign countries, and members of invading armies.
The obvious argument is that if a person is on the soil of a country expressly against the permission of the government, in direct violation of the country’s law, then that allegiance does not exist, because the only action (or at least the most prominent action) that the foreign national has taken is to violate the laws of the country. This is a completely different relationship (or lack of one) in regard to the individuals concerned, versus those who are legally settled in the country – who are clearly here in allegiance and in obedience to our nation.
For all these reasons, I’d say there’s good reason to question whether children born on US soil to illegal aliens are covered by the 14th Amendment. Again, the question can only be decided by the US Supreme Court. And given the current policy of considering children born to illegal aliens as natural born citizens, it’s hard to envision a lawsuit that would reach the Court to force a decision.
How does someone get to be a law professor without understanding what “analogous” means?
Unless he can point to a group of illegals setting up an enclave where they impose their own government, not only on themselves, but on anyone passing through, there’s nothing the least bit analogous to the situation of children born “during and within” a hostile occupation.
The mere presence of the alien in the country creates the temporary allegiance. This is from the Supreme Court decision in US v. Wong:
If someone is here illegally, and they aren’t subject to the jurisdiction of the U.S., what can the U.S. do? The courts would throw out any action brought against them, because (as the birthers know) jurisdiction is a requirement for the courts to act.
And yet the federal government detained Wong under the provisions of the Chnese Exclusion Act when he returned to the s in 1895 from visiting his parents in China.
In 1890, Wong Kim Ark’s parents returned to China. He visited them that same year, but came back to San Francisco, recognized as a “native-born citizen” by the U.S. customs officials. In 1894, when he was 21 years old, he went back to China to visit his parents again. In 1895, he attempted to re-enter the United States, but U.S. customs officials denied his entry, claiming this time that he was not a U.S. citizen.
The Chinese Exclusion Act was the cause the the first oarge scale influx f “undocumented workers” in the U.S.
That’s a very good answer, but I’m still not sure the answer is as simple as that.
Obviously something more than mere presence is required for there to exist sufficient temporary allegiance; because foreign royalty, foreign ambassadors, and members of invading armies have mere presence as well, and yet their mere presence either does not create sufficient temporary allegiance, or whatever temporary allegiance may be created by their mere presence is overridden by a higher allegiance to a foreign power.
It makes more sense to me that it’s the latter. Still, if someone enters the United States in violation of our laws, then it seems to me that it’s hard to observe any evidence of allegiance on the part of the person breaking the law.
I suppose a lot of it depends on whether allegiance is defined as something that is owed, by virtue of being on the soil, or whether allegiance is something that is demonstrated by a person.
If allegiance is owed merely by presence on the soil, then one would think that the same allegiance is demanded of all, including foreign royalty. And yet, as a practical matter, it can’t be.
And if such allegiance cannot be demanded or required of visiting foreign royalty, can it be demanded or required of visitors and illegal immigrants who aren’t royalty? And if so, on what basis?
Another possibility is that allegiance is both owed and demonstrated (or not). If that’s the case, then how important is the owing part, and how important is the demonstrating part?
So you see, there are nuances to the whole question. Unlike the question of the natural-born-citizen status of the US-born child of resident non-citizen parents (i.e., Wong), which has been answered definitively, I don’t think there presently exists a definitive answer… until and unless it’s decided by the Court.
That term was included by a Wikipedia writer describing Graglia’s paper. The word “analogous” does not appear in it.
Here’s what Graglia has to say:
Graglia has plenty more to say, including some observations that argue against his case. There’s too much too quote here, of course; the paper is available on the web.
Let me post the conclusion to Graglia’s paper:
So, to restate this:
1. By Graglia’s assessment (writing in 2010), the issue has plausible argument enough on both sides that it would probably be decided in a 5-4 vote, and could go either way.
2. As a matter of principle, “a policy choice by elected representatives should not be disallowed by judges as unconstitutional unless it clearly is.”
3. Because there is sufficient doubt that the Constitution requires us to extend citizenship even to those who are born here illegally, the matter should ultimately be decided by Congress and not the courts.
4. In Graglia’s view, it is absurd to assert that the Constitution requires that if persons enter the country illegally, in violation of our laws, and give birth here, that any child so born must, of necessity, be recognized as one of our native citizens, and there is nothing we can do to avoid that.
The final point (as he has written it) is a bit jarring. However, in the end, I have to agree. Does the Constitution really require that if people sneak over our border in violation of our laws and give birth here, that we must recognize the child of such aliens as a natural born citizen? That proposition is a bit difficult for me to accept, and I think it would be difficult for most of us to accept as well.
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It really bugs me that Wikipedia falsely attributes this to Judge Posner. It cites to Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003). In that case, the 3-judge 7th Circuit panel issued an “affirmance without opinion.” Posner was on the 3 judge panel, but he did not write an opinion. Judge Manion, nonetheless, gave his ‘opinion’, but the other two judges (including Posner) did not sign off on that. http://caselaw.findlaw.com/us-7th-circuit/1423087.html
I suspect this is not just an error. Posner is a very famous and influential judge. Someone probably thought it would carry much more weight if people thought Posner said it…
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I take that back. I now see another source with the same citation showing a concurring opinion written by Posner.
Weird, but I guess the citation to Posner appears to be correct after all. Sorry for my error.
Since it’s Wikipedia, I was going to suggest you correct it… but it appears that sometimes Wikipedia is correct after all. 🙂
Being an undocumented alien in the United States is not a crime. It is a civil matter. Undocumented aliens who are taken into custody because of their lack of documentation are not charged with a crime and are not brought to trial. Deportation is an administrative matter, not a criminal matter. So I do not believe that you can assume a lack of allegiance simply because someone is undocumented.
The fact is that most undocumented aliens do not enter the country illegally. Most of them enter the country legally and fail to leave when their visas expire.
Regardless, the overwhelming legal consensus is that “subject to the jurisdiction” means that you can be arrested and charged with a crime if you break a U.S. law. Foreign diplomats and their families have diplomatic immunity, so they are not “subject to the jurisdiction.” Undocumented aliens can be arrested and charged with a crime, so they are “subject to the jurisdiction.”
Sources?
The fundamental error in your analysis is confusing the casual definition of allegiance with the legal definition of allegiance. This is the legal definition from a legal dictionary:
In that definition, you see that it has nothing to do with a psychological alignment with a country, or any kind of feeling of loyalty. In popular usage, allegiance is something given, but in legal usage, it is something owed.
Of course we are talking about “temporary allegiance” here, which is an allegiance that lasts only so long as a person is within the sovereign territory of a nation, during which time they owe allegiance insofar as they must obey the laws of the nation.
Ambassadors are exempt from temporary allegiance because of longstanding international practice and treaties. Those in invading armies make it impossible for a nation to exercise its sovereignty in occupied territory.
The US Supreme Court said, in US v. Wong:
From a legal dictionary:
“The geographic area over which authority extends; legal authority; the authority to hear and determine causes of action.
Jurisdiction generally describes any authority over a certain area or certain persons. In the law, jurisdiction sometimes refers to a particular geographic area containing a defined legal authority. For example, the federal government is a jurisdiction unto itself. Its power spans the entire United States. Each state is also a jurisdiction unto itself, with the power to pass its own laws. Smaller geographic areas, such as counties and cities, are separate jurisdictions to the extent that they have powers that are independent of the federal and state governments.”
What follows is from Fox News and is based on an analysis done by the anti-immigration Center for Immgration Studies, so consider the sources:
Report: Children of Foreign Diplomats Enjoy U.S. ‘Super Citizen’ Status
The Founding Fathers and drafters of the 14th Amendment to the Constitution may just turn over in their graves if they read a new report by the Center for Immigration Studies that says foreign diplomats are obtaining U.S. birth certificates and Social Security numbers for their newborn children – effectively becoming U.S. citizens. On top of their new status in the world, these children carry an additional perk that most Americans do not have – diplomatic immunity.
Just like their parents, most are immune to criminal jurisdiction of the United States, creating what CIS describes as a “super citizen.” “Children of diplomats who receive U.S. birth certificates and SSNs have greater rights and protections than the average U.S. citizen,” says Jon Feere, the author of the report called “Birthright Citizenship for Children of Foreign Diplomats?”
A State Department spokesman told FoxNews.com that under the law, children of foreign diplomats are entitled to these records. “Persons born in the United States, including a child of foreign diplomats, are legally entitled to an official birth record issued by the Bureau of Vital Statistics of the state in which the child is born.” The spokesman added, “whether a child born in the United States to a foreign diplomat acquires U.S. citizenship at birth pursuant to the 14th Amendment requires a fact-based analysis.”
“If the child enjoys full diplomatic privileges and immunities, the child would not acquire U.S. citizenship at birth.” However, the CIS report highlights how easily a foreign diplomat’s child can indeed go from U.S. guest – to U.S. citizen.
Most states have adopted the same birth certificate request form established by the National Center for Health Statistics’ Division of Vital Statistics. Hospitals present this form to parents requesting a birth certificate. A foreign diplomat or his wife, who has just delivered a child at a U.S. hospital, would get this same form. On the form, there is a section that asks for each parents’ Social Security number, but parents can skip that detail if they do not have one or have forgotten it, according to the National Center for Health Statistics.
Foreign diplomats would not have that nine-digit number, so they would more than likely leave it blank. Also included, a slot asking if parents would like a Social Security number for their child. It’s a simple “yes” or “no” answer.
Nowhere on this form does it ask a person to check “no” if they are a foreign diplomat. According to the CIS report, “state agencies do not instruct hospitals to differentiate between children born to foreign diplomatic staff and those born to U.S. citizens or temporary or illegal aliens. Birth certificates are issued to all persons born on U.S. soil and requests for SSNs are generally forwarded to the Social Security Administration without being second-guessed.”
The CIS report goes on to say, “the Social Security Administration does not investigate whether SSN requests are for children of foreign diplomats. Although the agency does recognize that U.S.-born children of foreign diplomats are not eligible to receive SSNs, there is no mechanism in place for preventing such issuance.”
Immigration attorney Toni Maschler says while it is possible this is happening, it is probably rare.
“It would be proper for them to apply for a green card, but in most cases that child doesn’t stay here long enough to be eligible to naturalize as a U.S. citizen because their parents would more than likely transfer to a different post,” says Maschler. Palma Yanni, immigration attorney and former president of the American Immigration Lawyers Association, echoes Maschler’s statement and questions if these children would even ever consider becoming an American. “This is a tiny number and involves high-level diplomats who usually return to their country. This group would strongly identify with their nationality,” says Yanni.
With so many agencies involved in the road to citizenship – five mentioned in the CIS report – which would be best tasked to solve this potential problem?
Feere points to Congress. “I think Congress is the entity that needs to step up and provide guidance to the top agencies, which are the National Center for Health Statistics and the Social Security Administration,” says Feere.
Feere has a quick-fix recommendation: “requiring foreign diplomats to note their profession on birth certificate forms under penalty of law should be considered. This would necessarily require state vital statistics offices to forward information on parental occupations to the Social Security Administration so that a determination on citizenship can be made by federal authorities.”
In the past, the National Center for Health Statistics has talked about adding a section for parental occupation but says “it was a financial decision in the 2003 birth certificate revision to not include it because states didn’t have the money to code the information.”
Some may be quick to characterize what is happening as a type of loophole, but Feere says, “it’s a matter of law, and despite Congress’ clear intent to not create a completely universal and automatic birthright citizenship policy, the current application of the Citizenship Clause is so lax that the United States has a de facto universal birthright citizenship policy that denies U.S. citizenship by birth to no one, including children born to foreign diplomats.”
The 14th Amendment’s Citizenship Clause reads: “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.”
As the report points out, there is heated debate over who is entitled to claim citizenship, in particular illegal aliens or temporary visitors, but Feere adds, “there is one thing that everyone engaged in the debate agrees on: children born to foreign diplomats are not “subject to the jurisdiction” of the United States and are not to be granted U.S. citizenship.”
http://www.foxnews.com/politics/2011/07/11/children-foreign-diplomats-enjoying-us-super-citizen-status-says-report/
So they are making a big deal over the potential for a rare event to occur. What I didn’t understand is why they think only citizens can get social-security numbers, and what benefit such a number is for any one.
In addition to what Doc said, read this:
https://www.law.cornell.edu/cfr/text/31/515.329
If undocumented aliens were not subject to the jurisdiction of the United States, the U.S. would be powerless to deport them or arrest them.
Well, given those points, it may well be that the Supreme Court would rule in that direction. One way or the other, it would certainly be interesting to see a Supreme Court decision on the topic.
However, I will add this: Law is sometimes confusing, and laws are sometimes outright contradictory.
If you follow the Cornell link provided by Rickey, and read the definitions of “Person subject to the jurisdiction of the United States” and “Person within the United States,” that would lead to the inescapable conclusion that even diplomats, and their children, are “subject to the jurisdiction of the United States.”
Yet Jon Feere, lawyer and legal policy analyst, says, “…there is one thing that everyone engaged in the debate agrees on: children born to foreign diplomats are not “subject to the jurisdiction” of the United States and are not to be granted U.S. citizenship.
So i the end, I still think it’s a matter for the US Supreme Court to decide. Until they decide one way or the other, I consider that such a decision could go either way.
These arguments were all made in Wong Kim Ark by the losing side. The court in
Wong Kim Ark did specifically define what “subject to the jurisdiction” meant rejecting all the arguments made by Posner and his ilk. The court pointed out that Chief Justice Marshall already had a famous opinion stating exactly who was subject to our jurisdiction and who was not. Marshall explained why diplomats are not subject to our jurisdiction and no actual legal authority has ever challenged him. Such opinion was cited in pretty much every textbook on public international law in the 19th century including Twiss and Wheaton. Such interpretation is fully supported by the legislative history of the Amendment which indicated they meant to adopt the common law rule. Every Supreme Court case has dead-enders who refuse to agree with the opinion. In opinion 117 years old that has never been challenged by a subsequent court, there is pretty much zero chance the court will revisit the issue. Sorry to disappoint you but the Posner argument is pretty much frivolous at this point and will never be taken up by the Court.
Many of the slave children that everyone agrees were intended to be made citizens by the 14th Amendment had parents who were here illegally as the slave trade had been outlawed for more than a half century but slaves continued to be brought over illegally. Under international law, such slaves brought here involuntarily would have still been subjects of their native land as well might their children. Of course, none of this mattered to the framers of the 14th Amendment who were by their words simply adopting the common law rule. Words either have meaning or they do not.
Any person here legally or illegally is subject to our jurisdiction under the plain meaning of such words and by the law of jurisdiction accepted by all nations under International Law. Any one who says otherwise is simply ignorant of the law.
It is not contradictory at all. It is well-established law that diplomats and their children have diplomatic immunity and therefore are not subject to the jurisdiction of the United States. There is no need for the Cornell link to restate the obvious, and as you yourself noted “everyone engaged in the debate agrees” that children born to diplomats are not subject to the jurisdiction.
In 1900 U.S. Attorney Marshall Woodruff wrote an article for The American Law Review entitled “Who Are Citizens of the United States? Wong Kim Ark Case – Interpretation of Citizenship Clause of Fourteenth Amendment.” Here is what he had to say about aliens and jurisdiction:
It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides – seeing that, as said by Mr. [Daniel] Webster, when Secretary of State, in his report to the President on Thrasher’s case in 1851, and since repeated by this court, “Independently of a residence with intention to continue such residence; independent of any domiciliation; independently of taking any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.
https://books.google.com/books?id=_kgZAAAAYAAJ&pg=PA554&lpg=PA554&hl=en#v=onepage&q&f=false
But it is. “Subject to the jurisdiction of the United States,” according to the definition given, includes all persons “within the United States,” which (by a plain-text reading of its official definition, in turn) includes everyone on US soil. This obviously includes diplomats as well.
Yet, as you’ve noted, diplomats have diplomatic immunity. Yet I see no exception for this in the governmental definition of “subject to the jurisdiction of the United States.” An oversight? I would think so. Yet it points out that laws and policies can be contradictory.
In fact, that’s part of why we have a Supreme Court: part of its role is to determine the Constitutionality of laws passed by Congress, and policies of other branches of the government. If a law is “unconstitutional,” then what that really means is that it has been judged to be contradictory to the fundamental law of the land.
Because there is no exclusion required. Diplomats ARE subject to US law. All laws. But additionally, the US law that adopts the international treaty provisions that govern diplomatic embassies.
In general, diplomats are required to obey American laws when they are in country. Immunity basically means that the foreign country must be asked for permission to enforce American law against its diplomat. It is unlikely that that permission will be granted for a parking ticket, but will be seriously considered for murder.
Excuse my ignorance for asking…the discussion seems to focus on people who are here illegally and diplomats. Should we be talking about their children, whose citizenship is being discussed?
It is a longstanding principle that the children of diplomats do not acquire the citizenship of the countries in which they are born. This was true in the English Common Law upon which the first citizenship practices of the United States were based. The Supreme Court said in US v. Wong:
“The real object of the fourteenth amendment of the constitution, in qualifying the words ‘all persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,–”children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state…”
Some would argue that it makes little sense to grant citizenship to children born in the US to non-residents. I tend to agree with that idea, but it would require a constitutional amendment to implement such a change.
You are correct that it is actually the status of the child which counts. A child born in the United States, with a few specific exceptions, is subject the jurisdiction of the United States and is a natural born citizen of the United States.
Whatever it is, it is not an oversight. The diplomatic exclusion was frequently discussed. The Supreme Court in Wong said that the “subject to the jurisdiction” language was there specifically to exclude the children of ambassadors and alien enemies in hostile occupation.
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Now you’re nit-picking, and we’re getting off track. You’re now arguing that the law is not clear on whether diplomats are subject to the jurisdiction of the United States, and the likelihood of that ever being a question which would come before the Supreme Court is nil.
The relevant issue is whether the children of undocumented aliens who are born in the United States are subject to the jurisdiction of the United States. Even if the parents entered the U.S. illegally, and even if we accept the argument that their illegal entry somehow makes them not subject to the jurisdiction, the child who was born here did not commit any crime. If that child is abandoned or otherwise abused, the United States has jurisdiction to take custody of the child. The child is a U.S. citizen. It doesn’t matter if the parents turn out to be drug runners, because the child is blameless.
Exactly. Just like the “natural born” language was to specifically prevent foreign rulers from coming over, naturalizing and becoming President. (Which is why birthers can’t find a single argument about parents, singular or plural, in the debates and writings about the Constitution. One would assume that if parents, or even Vattel specifically, had been an issue, there would’ve been some argument whether both parents or just the father being citizens would suffice).
I’m not sure folks are quite understanding my point, and that’s probably mostly my fault, since I was making reference to things that are off site, and expecting folks to follow the thread.
Let me walk you through it, so you can see what I’m talking about, when I say that I see a contradiction in the law.
Here’s what I’m referring to. An earlier poster referred us to 31 CFR 515 for an official definition of “subject to the jurisdiction of the United States:”
31 CFR 515.329 – Person subject to the jurisdiction of the United States.
§ 515.329 Person subject to the jurisdiction of the United States.
The term person subject to the jurisdiction of the United States includes:
(a) Any individual, wherever located, who is a citizen or resident of the United States;
(b) Any person within the United States as defined in § 515.330;
(c) Any corporation, partnership, association, or other organization organized under the laws of the United States or of any State, territory, possession, or district of the United States; and
(d) Any corporation, partnership, association, or other organization, wherever organized or doing business, that is owned or controlled by persons specified in paragraphs (a) or (c) of this section.]
[50 FR 27437, July 3, 1985, as amended at 68 FR 14145, Mar. 24, 2003]
So then when you refer to § 515.330, to find out the legal meaning of “within the United States,” you get:
31 CFR 515.330 – Person within the United States.
§ 515.330 Person within the United States.
(a) The term person within the United States, includes:
(1) Any person, wheresoever located, who is a resident of the United States;
(2) Any person actually within the United States;
(3) Any corporation, partnership, association, or other organization organized under the laws of the United States or of any State, territory, possession, or district of the United States; and
(4) Any corporation, partnership, association, or other organization, wherever organized or doing business, which is owned or controlled by any person or persons specified in paragraphs (a)(1) or (a)(3) of this section.
(b) [Reserved]
[28 FR 6974, July 9, 1963, as amended at 68 FR 14145, Mar. 24, 2003]
There is no exception given to (2). It says “any person,” period.
So it follows from these definitions, that if a foreign diplomat is physically within the United States, then he or she, according to 31 CFR 515, is “subject to the jurisdiction of the United States.”
It also follows that if his or her child is born in the United States, then (according to these definitions) that child is “subject to the jurisdiction of the United States.”
Now with that in mind, let’s hop back to the 14th Amendment:
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.
And yet, as Dr. Conspiracy has pointed out, the phrase “subject to the jurisdiction thereof” was in fact added to specifically exclude such persons from birthright citizenship.
This is what I mean by there being a contradiction.
But it is 8 CFR 101.3 (a) that applies to children born in the US to foreign diplomats.
§ 101.3 (a) Person born to foreign diplomat. (1) Status of person. A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the Fourteenth Amendment to the Constitution. Such a person may be considered a lawful permanent resident at birth.
Thanks for providing that. Very useful.
It appears that the use of 31 CFR 515 for a definition of “subject to the jurisdiction of the United States” would be a bit out of context. That section of administrative law has to do with “CUBAN ASSETS CONTROL REGULATIONS.”
Still, the definition used there ignores 8 CFR 101.3, which you have so aptly quoted.
All in all, I think a good argument has been made that the children born here of illegal alien parents are, in fact, subject to the jurisdiction of the United States, and are therefore – by way of the 14th Amendment to the Constitution – natural born US citizens.
That raises the interesting prospect that a child born here of illegal immigrant parents could, theoretically, become President of the United States.
Here is some more interesting reading on the topic:
https://cliniclegal.org/sites/default/files/KHFourteenthAmendmentforWeb9-13-11.pdf
Foreign diplomats themselves *are* “subject to the jurisdiction” of the United States, and that is why the United States has authority to grant them the civil and criminal immunity that they are entitled to.
Children of foreign diplomats are not “born subject to the jurisdiction of the United States” and that is expressly provided under Title 8, which is possible for exactly the reason that the parent(s), foreign diplomat(s) and others meeting the criteria, rather clearly set forth in the first order of business of Title 8 of the US Code.
I think part of the confusion has to do with a conflation of the separate ideas of “jurisdiction” and “immunity”. If a person on the Blue List were not subject to the jurisdiction of the United States, there would be no need and no authority for granting immunity to them, and no basis for establishing degrees of and limitations on immunity.
Yes, but as a practical matter it is not likely to happen, at least in the foreseeable future.
In the Wong Kim Ark case the government protested that if he were declared to be a citizen he would be eligible to be president, but 117 years have passed and not a single person of Chinese descent has made a serious bid to become president. Hiram Fong of Hawaii was a favorite son candidate for the Republican nomination in 1964 and 1968, but he had no chance of winning; likewise Patsy Mink of Hawaii ran in a few Democratic primaries in 1972 but never received more that 1.59% of the vote.
What makes that “interesting?”
What makes “a child born here” particularly distinct from “a child born here of illegal immigrant parents?” A child born here whose father was a horse thief or a drunken motorist could also become president. So what?
It’s even sweeter if two stateless aliens sneak into the U.S. , have a child, and plan to force him on the American population as an eventual President in an election 40 some years later, because such a NBC child, has no allegiance to any other nation!
Oh, I agree. It will most likely never happen.