What ‘Subject to the Jurisdiction Thereof’ Really Means
by P.A. Madison on September 22nd, 2007
[Updated 8/24/2015 to make more readable]
Because the purpose of the Fourteenth Amendments first section was to end the denial of those fundamental rights that belong to all United States citizens by virtue of their citizenship under Article IV, Sec. II of the U.S. Constitution was imperative to first define citizenship of the United States. Otherwise, a State could refuse to recognize newly emancipated slaves as citizens by withholding the right to sue, make contracts, due process, purchase property, etc. in any State they ventured into Therefore, the Fourteenth Amendment acts to recognize all persons as citizens who do not owe allegiance to some other government when naturalized or born.
Perhaps the first most important thing to understand about national birthright is that there was no national birthright rule applicable within the States prior to 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. The reason for this is because the authority remained with each State to make rules that distinguished alien from citizen.
The distinction was important because aliens could been prevented from owning property, voting, inheritance, doing business, etc.
Madison made it clear rules of who is a citizen or alien properly belonged with each State when addressing a contested South Carolina Election of Rep. William Smith in the House of Representatives in 1794. Madison said the question of whether Rep. Smith had been a citizen of the United States for seven years at the time of the declaration of independence rested entirely with the Constitution of South Carolina:
From an attention to the facts which have been adduced, and from a consideration of the principles established by the revolution, the conclusion I have drawn is, that Mr. Smith was, on the declaration of independence, a citizen of the United States; and unless it appears that he has forfeited his right, by some neglect or overt act, he had continued a citizen until the day of his election to a seat in this House. I take it to be a clear point, that we are to be guided, in our decision, by the laws and constitution of South Carolina, so far as they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature, so far as they are applicable to the present case . . . It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us.
After the Revolution, States retained only those portions of common law that were applicable to their local circumstances. In England at the time, the general rule – not a hard rule since could be suspended when required by the King – every person born within the Kings allegiance and within any of the King’s realms or dominions was considered a natural born subject under the maxim every man owes natural allegiance to the King whom may have been born in any of his realms or dominions. This natural allegiance was perpetual and difficult to severe or alter (Once a English subject, always a English subject) and was found odious in this country (America went to war against this “natural allegiance” in 1812).
In early America the common law rule of “natural allegiance” was discarded as well as the rule of automatic citizenship to children born to aliens regardless of their condition. Other differences that differed from the common law were the general rule children born to transient aliens or temporary sojourners remained alien. Early states also required of aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. Therefore, a child born to domiciled alien parents was “born within the allegiance” of the State even if the parents had not yet been naturalized would be considered a citizen of the state and a United States citizen.
Moreover, when an issue of aliens and citizenship went before the courts it meant some State had neglected to enact laws on the subject, thereby forcing the courts to adjudicate citizenship under common law rules of place of birth. This is exactly what happened with the State of New York in 1844, forcing the State to later withhold automatic citizenship of children born to “transient aliens” by statute. *
Conceivably, Congress could had from the beginning attempted to include a defined local birthright rule – whether due to place of birth or parentage – but would have found, just as the Thirty-Ninth Congress had discovered, to be no simple matter as individual States had differing opinions over who should, or should not, be their citizens.
As a rule, the nation considered only those patriotic immigrants who came here for the exclusive purpose to settling amongst us, bringing with them wealth, like habits and customs as those worthy to become part of our society. And more importantly, those willing to renounce all prior allegiances to their country of origin and swear exclusive fidelity to this one.
Paupers, vagabonds and imperialist were universally despised.
The Fourteenth Amendment’s citizenship clause differed from the common law rule in that it required owing complete allegiance only to the United States in advance rather than automatically bestowed by place of birth, i.e., only 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 but born within the complete allegiance of the United States politically and not merely within its limits. Under the common law rule it did not matter if one was born within the allegiance of another nation.
Under Sec. 1992 of U.S. Revised Statutes the same Congress who had adopted the Fourteenth Amendment had enacted into law, confirmed this principle: “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.”
Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.” Thus, the statute can be read as All persons born in the United States who are not alien, 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 debates that it was the goal to “make citizens of everybody born in the United States who owe allegiance to the United States,” and if “the negro or white man belonged to a foreign Government he would not be a citizen.”
Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, confirmed on March 1, 1866 that children under this class of aliens would not be citizens: “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.”
Framer of the Fourteenth Amendments first section, John Bingham, said Sec. 1992 of U.S. Revised Statutes 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.” If this statute merely reaffirmed the old common law rule of citizenship by birth then the condition of the parents would be entirely irrelevant.
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 (co-chairman of the Reconstruction Committee) raised the question of persons born of parents from abroad temporarily in this country – an issue he would not have raised if Congress were merely reaffirming the common law doctrine – and of course, the question of Indians.
A common mischaracterization of the debates says Senators Trumbull, Cowan and Conness suggested both the Civil Rights Bill and the Fourteenth Amendment would make children born to Chinese or Mongolian parent’s citizens regardless of the condition of the parents. However, this is an erroneous conclusion because they were discussing concerns over whether “race” of the parents could play a role. They were not suggesting locality of birth alone was to be the sole requirement of citizenship under the Fourteenth Amendment. Additionally, this discussion appeared before the chief authors, Senators Lyman and Howard, provided the proper intended operation of the language.
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.
In Steel Co. v. Citizens for a Better Environment (1998) the court said “jurisdiction is a word of many, too many, meanings.” Therefore, it is important to discover the operational meaning behind “subject to the jurisdiction” as employed under the Fourteenth Amendment rather than assuming its meaning from other usages of the word jurisdiction alone. Both Sen. Trumbull and Sen. Howard provide the answer, 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.
In other words, it isn’t local jurisdiction the Fourteenth Amendment recognizes but only the lack of owing allegiance to some other nation because the United States only recognizes those who are ‘true and faithful’ alone to the nation. As will be explained shortly, only acts under the laws of naturalization can remove an alien’s allegiance to some other country under United States law.
Additionally, Trumbull argued Indians could not be subject to the jurisdiction for the reason the United States deals with them through treaties. This is also exactly how the United States deals with aliens from other nations as well; they enter into treaties with outer countries to define legal rights of their citizens while within the limits of the United States and vice versa. Example: A treaty with China prohibited the United States from naturalizing Chinese citizens.
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, coextensive in all respects with the constitutional power 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.
This remark by Sen. Howard places this earlier comment of his on who is “subject to the jurisdiction thereof” into proper context: “This 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, but will include every other class of persons.”
What Sen. Howard is saying here is citizenship by birth is established by the sovereign jurisdiction the United States already has over the parents of the child, and that required that they owe allegiance exclusively to the United States – just as is required to become a naturalized citizen. 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 complied with the laws of naturalization in declaring their intent and renounce all prior allegiances.
Sen. Trumbull further restates 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…” Note that Trumbull does not say temporarily within our jurisdiction, but “completely within our jurisdiction”.
He of course is talking about 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. Without this full and complete jurisdiction, any foreign government can intervene on behalf of their own citizens while they visit or reside within the United States – just as the United States is known to do on behalf of U.S. citizens within other countries.
Any citizen owe the same quality of allegiance to their nation of origin as does their country’s ambassador or 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 a complete subject (politically) 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, and the only way that could change is through the voluntarily act of expatriation. 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.
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 bona fide residents of the State. New York by 1857 had already a 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, etc.” This code overturned the court ruling in Lynch v. Clarke (1844) where the court was forced to consider the English common law rule in regards to children born of aliens because New York had no laws on the subject at the time.
Additionally, the District of Columbia, California, Montana and South Dakota adopted identical language as New York. States could enact such laws because “transient aliens” could not be considered “subject to the jurisdiction” of the United States. The State of Connecticut adopted a law that read, “All persons born in this State . . . except aliens, paupers, and fugitives from justice or service, are and shall be deemed to be citizens of this State, owing it allegiance and entitled to receive its protection, until they shall have voluntarily withdrawn from its limits and become incorporated into some other State or sovereignty as members thereof.”
Such State laws were not contrary to the Fourteenth Amendment for the simple reason they merely deny citizenship to those born whom another sovereign claims as its own, i.e., denial of citizenship to those born owing allegiance to another sovereign conforms with the constitutional definition given to “subject to the jurisdiction thereof.”
In the year 1873 the United States Attorney General ruled the word “jurisdiction” under the Fourteenth Amendment to mean, which Justice Gray would recognize in Elk v. Wilkins years later:
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 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. (14 Op. Atty-Gen. 300.)
House Report No. 784, dated June 22, 1874, stated, “The United States have not recognized a double allegiance. By our law a citizen is bound to be ‘true and faithful’ alone to our government.” There is no way in the world anyone can claim “subject to the jurisdiction thereof” affirms the feudal common law doctrine of birth citizenship to aliens because such doctrine by operation creates a “double allegiance” between separate nations.
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.
* The phrase “transient aliens” was generally used to refer to aliens other than “domiciled aliens” who had taken their oath of allegiance and other requirements 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.