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.

Related Was U.S. vs. Wong Kim Ark Wrongly Decided?

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149 Responses | Leave a Comment
  1. Douglas Smith says:

    MickeyG: Back in the late 1980’s to early 90’s that was the prominent thinking among the conspiracy theorists. I, was among them. Since then I have come across irrefutable facts that dispel this notion. In the Supreme Court decision of Hooven and Allison v. Evatt , 324 U.S. 652 on page 671:

    “The term ‘United States’ may be used in any one of several senses. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations. It may designate the territory over which the sovereignty of the United States extends, or it may be the Collective name of the states which are united by and under the Constitution.”

    Where did Mr. Chief Justice Stone get this information? Footnote #6 from page 672 supplies us this information:

    [ Footnote 6 ] See Langdell, ‘The Status of our New Territories’, 12 Harv.L.Rev. 365, 371; see also Thayer, ‘Our New Possessions’, 12 Harv.L.Rev. 464; Thayer, ‘The Insular Tariff Cases in the Supreme Court’, 15 Harv.L.Rev. 164; Littlefield, ‘The Insular Cases’, 15 Harv.L.Rev. 169, 281.

    Langdell, as well as Thayer and Littlefield are excellent reads. Langdell stresses that the meaning of the term “United States’ in the 14th Amendment can only be in its original sense, ie. the Union or as more commonly known “The United States of America”. That today consists of the 50 States of the Union and Washington D.C.

    The Slaughterhouse cases and the Kim Wong Ark case are just so much dicta.

    Enjoy your research and reading.

  2. The citizenship clause of the 14th Amendment was proposed by John Bingham, who stated the premise and intent for it in Congress assembled prior to the ratification of the 14th Amendment. The Amendment itself was basically illegal because its “overall” intent was to cancel the inalienable right of the States, under the 10th Amendment of the Bill of Rights to their sovereignty and reserved powers not delegated specifically to the federal government.

    Yet, since the citizenship clause, the first sentence of the 14th Amendment, was regarded as law after 1865, every jot and tittle of the clause should be regarded as law, according to the Congressional intent of the Amendment. The collective intent of the clause was that the parentage of the citizens be regarded as the basis for the citizenship of children becoming citizens of the USA. If someone sneaks across the U.S. border, any border, and is an illegal alien, per U.S. statute, and is still under the jurisdiction of the country from which he originated, any children born to him, or her, are not citizens of the USA by birth. Conversely, if a person from any other country applies for a U.S. visa and is given one for a particular period of time, that person is under the jurisdiction of the United States for the time he, or she, is inside the republic. So, any child born to that person during the lawfully permitted time inside the USA is a citizen of the USA by birth. If, perhaps, the visa expires and the person becomes an illegal alien, then any child born to that person is not a citizen. I believe the intent of that first sentence is very clear. It is all about allegiance to the USA. An illegal alien who is in the USA illegally has only an allegiance to his, or her, country of origin, since that person has shown no regard, or respect, for the laws of the USA. A person who enters the country legally for the purpose of naturalization shows respect for the U.S. Constitution, and is under the jurisdiction of the USA while going through the process of naturalization.

    Before the 14th Amendment, the Naturalization Statute of 1792 imposed the restriction that “only” children of citizens of the USA (mothers and fathers of those children) born to those citizens outside of the USA were natural born citizens of the USA. Hence, a child born to a U.S citizen mother and a French citizen father in France was not a natural born U.S citizen. This, I believe, is the natural born citizenship stipulation for U.S. presidential eligibility imposed by the U.S. Constitution.

    The 14th Amendment citizenship clause was dealing with ordinary citizenship, either by birth or naturalization. Hence, an alien who is not legally inside the USA is not capable of bearing children who are citizens of the USA. A person has to be under the jurisdiction of the USA at the time children are born to that person for those children to be regarded as U.S. citizens by birth.

  3. Clint Morris says:

    Madison means “domestic” birthright rule, not Naturalization or outside of the U.S. rules.

  4. John Locke says:

    As a descendent of those whom have fought for independence and to preserve the union, I speak for my ancestors when I say follow the intention of the amendment. To use this amendment in order to change the very culture of our nation is an exercise in evil. Now is the time to either preserve the nation or destroy it. Former POTUS Eisenhower was able to give us some breathing room and a temporary respite but here we are again standing at the same precipice just exponentially larger.

  5. Charles Boyd says:

    In the discussion above Anonymous claims “The Supreme Court has weighed in on the meaning of ‘subject to the jurisdiction’” – he then concludes that the Court essentially said that anchor-babies are not citizens.

    Whether Anonymous knows it or not he is quoting Elk v. Wilkins (1884) in which the court ruled that an Indian born on a reservation is not a citizen by right of birth. BTW, the exclusion of Indians from birthright citizenship was then eliminated by the Indian Citizenship Act of 1924.

    The more recent (and last) time the Supreme Court “weighed in” on the 14th amendment (United States v. Wong Kim Ark – 1898) it concluded that anyone born on US soil was a US citizen regardless of the status of the parents.

    In case there are any impressionable kids reading the bigoted nonsense shoveled up by websites like this – you can read the text of the constitution for yourself – it’s fairly plain English. http://constitutionus.com/#amendments

    • Joseph says:

      Your interpretation of that case is incorrect. The court misinterpreted the 14th Amendment, and 4 Justices disagreed, but even with their bad decision which was politically motivated, it was based on the fact the parents were LEGAL immigrants or legal resident aliens, not illegal aliens and since illegal aliens not subject to the full jurisdiction of the US their children are not automatically citizens of the USA.

    • Recapped says:

      Wong was Wrong! The Minority dissenters were correct – jurisdiction is about allegiance to a country, not obeying the laws of the country you are presently in (legally or illegally)! That is expected behavior!

    • Decided to Check @CharlesBoyd says:

      Charles Boyd commented above..
      “The more recent (and last) time the Supreme Court “weighed in” on the 14th amendment (United States v. Wong Kim Ark – 1898) it concluded that anyone born on US soil was a US citizen regardless of the status of the parents.”
      However I looked it up and found the following on Wikipedia…
      “Wong Kim Ark, who was born in San Francisco around 1871, to Chinese parents legally domiciled and resident there at the time, had been denied re-entry to the United States after a trip abroad, under a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. He challenged the government’s refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the citizenship language in the Fourteenth Amendment encompassed the specific circumstances of his birth, which included that he was the child of foreigners permanently domiciled and resident in the U.S. at the time of birth”
      As stated, Wong Kim Ark’s parents were here LEGALLY and PERMANENT RESIDENTS, and thus he was granted citizenship.
      Someone here ILLEGALLY is not here legally, is not a permanent resident (no papers means not a resident), and thus is NOT a US Citizen!
      Thank you Charles Boyd for encouraging me to read plain english! 🙂

      • gqroll says:

        Thanks for looking that up… I was afraid I would have too:)

      • Douglas Smith says:

        In answer to ‘Decided to Check @CharlesBoyd’. Have you ever understood that a ‘Green Card’ holder, having been granted ‘permanent resident status’ via USC Title 8 is still an alien. He or she has not taken the oath to become a citizen of the United States of America. This ‘lawful permanent resident’ (see USC Title 26, Section 7701(b)) still owed an allegiance to his or her country of origin. In the above article “What ‘Subject to the Jurisdiction Thereof’ Really Means” the author points this out quite clearly. This fact alone casts negative dispersions upon the Supreme Courts decision in its Wong Kim Ark majority decision.

  6. MickeyG says:

    That is not the way I take it. “and subject to the jurisdiction thereof” means exactly what it says. The territorial jurisdiction of The United States is spelled out in Title 18 Section 7, and it most certainly does not include the several states. So according to the 14th Amendment’s definition of citizen of The United States, we most are not.

  7. Warren Hathaway says:

    In his work, “Blunders of the Supreme Court of the United States, Part 3” (online), the author, Dan Goodman, shows with cases from the Supreme Court that the political jurisdiction of the United States does not extend to the several States, but only to the District of Columbia, its territories and possessions, and federal enclaves with the several States of the Union and that one born in a State of the Union is subject to the political jurisdiction of that State and not that of the United States.

    So birthright citizenship does not apply to the several States of the Union!

    This article can be read at these two links:



  8. Roules John says:

    Thank you for this great aritlce,
    so there are aliens or not ?!

  9. anon says:

    leticia olalia morales of 15501 pasadena ave #8 tustin ca 92780 submitted fake documents and paid 5000 dollars to obtain a US tourist visa. she also submitted fake employment records to obtain a work visa. she is now applying for citizenship. her contact at the embassy was man named sandman.

  10. Sunshine49 says:

    When the 14th Amendment was written there were no “illegal” aliens in this country, against our laws and WITHOUT our permission like an invading army. To give citizenship to children of aliens who owe NO allegiance to the U.S. is a travesty of justice and a slap in the face to people who work for years to become naturalized citizens. THEIR children do NOT become citizens until the parents are naturalized! Citizenship is a privilege — NOT a right!

    Even England stopped there automatic English common law citizenship in 1983 because they were being over-run with illegals invading their country.

    Ted Kennedy was behind rewriting our citizenship laws in 1965 and everyone knows what a liberal progressive he was. The fact is that NOTHING can “change” an amendment to the Constitution except another amendment, which has never been done on the 14th Amendment. According to the framers of the 14th Amendment, a child of FOREIGN parents (especially the father) do NOT get U.S. citizenship at all! They did NOT recognize “dual” citizenship. Any citizenship law that runs contrary to the 14th Amendment is NOT constitutional.

  11. Beaver says:

    Looks like the Supreme Court shot themselves in the foot in 1897 when they wrote:

    That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.

    So it turns out Lynch v. Clark was not based on any law at the time but based on the fact NY had no law on the subject! The fact it was overturned pretty much proves it was contested contrary to what the court suggested.

    And you might be onto some huge by pointing out states all required foreigners to renounce all other allegiances and pledge sole allegiance to the state as a condition of taking up residence. So children born to them would have been born within the allegiance becaiuse of their father’s new existing allegiance and not because of locality!!!!!!!!

    I think when all is said and done it is the allegiance that is the 5 ton elephant in the room and not mere location of birth.

    • Parker says:

      Correct me if I’m wrong, but isn’t the Wong Kim Ark verdict, an example of the Supreme Court legislating? If congress passed no such law regarding citizenship then the Supreme Court isn’t allowed to do it. Wouldn’t that then make the ruling illegal and invalid?

      • gmkjr says:

        Actually prior to the Revolution, and up to the adoption of the Constitution, the law in the US was based on the common law of England. Therefore, it is incorrect to say “there was no law,” instead, cases were decided based on earlier case law from Britain and individual colonies.

  12. Madi says:

    so in shorter terms: Subject to the Jurisdiction means “Not owing alliance to anyone?”

  13. Phosgood says:

    “President Obama”s issue is also compounded by the fact that the qualification for President of the US is NOT just that he is a citizen. If he, or anyone, was naturalized, he is not eligible for the position.

    It’s just that simple!

  14. Phosgood says:

    “We have for generations followed the belief that a child born in the US is a US citizen”…….

    Only if the parents owe no allegance to a foriegn nation.

    “WE” have got confused since the Immigration Acts of 1964/65.

  15. Phosgood says:

    Learn to spell “Constitution” before you share your wishes of it with us!

  16. Applying the information in this article to President Obama would seem to indicate that the relevant item on his birth certificate would not be place of birth, but the nationality of his father. Since his father returned to his country of origin, it is unlikely that he gave up his allegiance to that country.

  17. hublot says:

    “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.”

    Interesting to find Bingham stating natural born citizens are defined by the allegiance of the parents. This actually makes more sense then linking natural born with native born.

    American law for most of our history recognized any person born of an American father in another country to be an natural born American citizen. So if mere presence on foreign soil had no bearing on the matter, why does some think it would in this country?

    Very strange.

  18. Anonymous says:

    the power is authorized by the contitution therefore they have the right to do it

  19. IceTrey says:

    While within the borders of the US they are under it’s “territorial” jurisdiction but, being aliens, they are not under it’s “personal” jurisdiction.

  20. Daud says:

    Mockery of our system? It is a mockery to try to reinterpret our laws without new information or new understanding of civil rights. That is what I consider activist interpretation of our constitution. We have for generations followed the belief that a child born in the US is a US citizen. What has changed in our understanding of the constitution or human rights to warrant us changing that? When it comes to the phrase “anchor baby ” you show your pre-judgment of the issue. I have heard interviews with wealthy families from foreign countries that purposely come here to give their child dual citizenship. But have seen very little evidence that poor illegal immigrants come to this country with the idea that their child’s being born here will somehow give them, the parents, some right to stay here. As of now when parents are brought before the immigration system they have the choice of giving up their parental rights and the child staying in the US while they are sent to their home country or to take the child with them until the child reaches his/her majority at which point the child as a US citizen will be allowed back in the country. Their child being an American citizen in no way changes the fact that they are here without proper documentation and must return to their home country.

    • Don H says:

      Perpetrating a myth does not make the myth into a reality. Let’s get back to the original intent and stop fooling ourselves with want-a-be interpretations.

      • gqroll says:

        “but have seen very little evidence that poor illegal immigrants come to this country with the idea that their child’s being born here will somehow give them, the parents, some right to stay here”

        I live and grew up in a border town. Believe me, they cross over just to have their babies and now they know they can collect benefits and that the Obama admin won’t kick them out. Our county hospital, literally, had to close because there was so many Mexicans, with visa cards, crossing over just to have their children born and registered in US and not pay a dime.

  21. Solon says:

    Where does the author of this post practice constitutional law? Does he/she have a bar card?

  22. Anonymous says:

    The dissenting 4 justices had the more accurate scholarship but were edged out for the sake of this case. Even the Majority opinion justices never dreamed it would mean what it does today.

    The case still required permanent residence and admittance by the US. Both of these are violated today by tourist birth citizenship and illegal aliens respectively. But these are the ones benefiting most from it.

  23. Mark in Iowa says:

    Could someone who believes that the 14th amendment does not confer citizenship on the children of illegal aliens by the reasoning that “subject to the jurisdiction..” does not apply to them explain the following?

    What does it mean, as a practical matter, for a child to NOT be subject to the jurisdiction of the US? That is what you are implying, that these children are, like the children of diplomats, not subject to US jurisdiction. What does that mean exactly on a practical level? Do they have diplomatic immunity? Are they not subject to selective service? Explain please.

    • Tom says:

      Could someone who believes that the 14th amendment does not confer citizenship on the children of illegal aliens by the reasoning that “subject to the jurisdiction..” does not apply to them explain the following?

      What does it mean, as a practical matter, for a child to NOT be subject to the jurisdiction of the US? That is what you are implying, that these children are, like the children of diplomats, not subject to US jurisdiction. What does that mean exactly on a practical level? Do they have diplomatic immunity? Are they not subject to selective service? Explain please.

      The senators who authored the ammendment discussed this specifically as part of the congressional record. There was some question whether “under the jurisdiction of” was too vague and it turns out the concerns were valid! However, the record makes it clear that there are different kinds of jurisdiction and while being subject to the law of the land is one kind of jurisdiction, the jurisdiction referred to in the amendment is full or complete jurisdiction meaning there were no other loyalties. Essentially, anyone who would qualify for dual citizenship automatically does not qualify for American citizenship.

    • Don H says:

      Foreign visitors are granted a visa to allow those subject of a foreign power to enter the U.S. and to limit their stay in the U.S. A child is subject to its parents who came here on that visa. A child cannot swear allegiance to the United States. Therefore, a child born of foreign parents is subject to the government of the parents. Illegal aliens have not followed ANY due process to enter the U.S. Any of their children born in the U.S. are definitely NOT subjects of the U.S. nor are they under the jurisdiction of the U.S. Illegal aliens are subjects of a foreign power. That is why they all are eligible for deportation when apprehended.

      • David Stovall says:

        The court noted in Slaughterhouse::: “the condition of the parent determines the condition of the child”. Illegal parents cannot birth a citizen. That all agrees with the authors of the 14th.

  24. Aaron's Run says:

    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 of 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 the sole requirement of citizenship.

    Yup, good point after re-reading the congressional record. Have to remember naturalization law at that point still used the word “white”.

  25. RB says:

    The pundits who claim such a constitutional right often conveniently ignore the second clause of the 14th Amendment which clearly modifies the first by limiting birth citizenship to those whose parents are already “subject to the jurisdiction of the U.S.”

    Indeed in 1866, Sen. Lyman Trumbull, the author of this modifying clause (in both the 14th Amendment and the Civil Rights Act), anticipated precisely the kind of far-fetched constitutional claims now being made for birthright citizenship.

    Accordingly, he stated for the congressional record that the modifying clause was meant to pertain only to parents who were “not subject to any foreign power.” (In this regard, one might note that Mexico does not relinquish jurisdiction over its nationals just because they give birth to children in foreign countries.)

    Trumbull’s co-author, Michigan Sen. Jacob Howard, was even more specific, stating clearly and unambiguously that the automatic citizenship provision would “not include persons born in the U.S. who were foreigners, aliens …”

  26. Richard Haas says:

    Thanks for highlighting that 1873 US Attorney General opinion since it appears that was always the governments view of birthright. The fact it was the US govt who argued Wong Kim Ark was not a citizen just reinforces this conclusion. Why the court desired to imposed the old English common law rule in Wong Kim Ark when they had it right in Elk to what “subject to the jurisdiction” means is still a mystery.

  27. adsl megavnn says:

    Thanks for your useful article here

  28. Anonymous says:


    Now tell that to the pinheads handing out US birthright certificates left and right.

  29. Anonymous says:

    your common sense is refreshing.

  30. RB says:

    Let’s be sarcastic.

    When the Mexican caucus takes over DC and the Russian tourist mom wants them to grant her newborn a US passport, the Chinese treasury will deny their credit card.

    I think the native American and the Gringo will have a laugh and toast the good old days with a bottle of firewater made in the USA.

  31. Anonymous says:

    I like what Gillespie posted.

    Whoever is the idiot who records the birth as a US citizen or produces the passport is also the problem. This unwarranted clerical abuse of the 14th by these workers is where it happens. They should all be fired or else support each of them out of their own pocket to spare the taxpayer, their choice. But the system is upside-down. Probably afraid of some activist attorneys that spin the law for their pro-illegal agenda.

    The other thing is the idiotic footnote by Justice Brennen in 1982 I think. expressing his opinion that the 14th doesn’t distinguish between legal and illegal, if I remember. What an idiot! What else does law do?

    But that ill conceived footnoted accelerated the ‘anchor baby’ tsunami ever since. There are those who would be happy with no border and no law on this issue. You can bet they don’t worry about paying the bill.

    This is to say nothing of the reconquista crowd who preach invasion by way of the birth canal as one female investigative reporter put it. They are quite vocal. One day the sheer weight of population will retake with politics what Mexico lost in the war against the USA a century ago. Aztlan will no longer be a myth according to these firebrands.

    Such treasonous sentiments are what renders our laws disrespected and defied. This passes for allegiance to the USA in the twisted thinking of their attorneys.

    The 14th requires political allegiance to no other power, remember.

  32. Anonymous says:

    One of the lessons learned by the Center For Immigration Studies since the 1986 ‘Amnesty’ is that next time:

    # It should put heavy emphasis on the initial interview, and make sure that the burden of proof is on the applicant throughout the process, as it was not during part of the SAW program. Similarly, there should be a readily available opportunity for shaky applicants to withdraw and to get their money back if fees again fund the program.

    # The funding of such a program should be arranged to fully support fraud detection, not only using all the fees collected for that program, but tax funds as well, if need be. There never should be a financial incentive to the managing agency to tolerate fraud, as there was in the SAW program.

    75% of illegals have committed fraud against US citizens.

    No one can defend that!(Though Gloria Alred might try)

    Some scholars say the illegal who sneaks into the USA and has a baby to be given US citizenship is a fraud!

    Of course fraud disqualifies the boon of the 14th Amendment.

    Any solution to illegal immigration should start with fraud.

    That would really make a dent!

  33. RB says:

    Let me quote a survey that should be of interest:

    “The survey also found that more than one-third of people in Mexico (38 million) would like to live in the United States if they could. This clearly shows that the desire to come to America remains very strong in that country. This means that if there was an amnesty in the United States, a very large number of people in Mexico might come illegally in the future in the hope of qualifying for another amnesty.

    Another important finding of the survey is that most people in Mexico think that the 32 million Mexican-Americans in this country, most of whom were born in the United States, should give their primary loyalty to Mexico. They also think the Mexican government should represent the interests of Mexican-Americans in the United States.”

    They sure like to have their cake and eat it too.

    Or is it : They steal our pot to cook our goose.

  34. Anonymous says:


    The Supreme Court has weighed in on the meaning of ‘subject to the jurisdiction’:

    According to the Court: “no one can become a citizen of a nation without its consent.”53 Specifically, the Court held that although the plaintiff was born in the United States, he was not granted U.S. citizenship through any treaty or statute and was consequently not subject to the jurisdiction of the United States under the 14th Amendment. The Court defined the jurisdictional requirement of the Citizenship Clause as requiring a person to be:

    “”¦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 direct and immediate allegiance.”

    That goes well beyond being law abiding or within the geography doesn’t it?

    Where does this leave the unlawful immigrants (perhaps even defiant of US authorities) who are subjects of another country which has proper claim over their newborn?

    These are not the ones welcomed and admitted into the USA through the front door like the Chinese RR workers of generations ago.

  35. says:

    Not 100%.

    Remember, 4 justices defended the 14th as intended. They disagreed with the decision of the other 5.

    The majority did not dream of the future ramifications today.

    Scholars suggest they were in favor of this young man and others like him as exceptions.

    His parents were admitted into the country unlike unwelcome illegal aliens today. Also they were permanent residents unlike tourists today. Still today these are the ones who get the vast majority of automatic citizenship for their newborn using that Supreme Court decision. Scholars call this unwarranted and too permissive.

    Even the 5 in the majority would never approve such abuse of the 14th today.

    At any one time there were over 5 million ‘anchor babies’ in U.S. public schools recently. Think of how many that adds up to over several decades. These are not properly U.S. citizens in fact.

    This short circuits the legal process and makes chumps of the legal immigrants.

    I’m not saying this due to my politics. But just from the standpoint that we all should abide by the law without spin.

  36. says:

    Just because the writers of the 14th had such thinking means they would punish babies? I don’t think so.

    Those US citizens who have a baby in another country wouldn’t think immigration law is punishing their baby to have the same citizenship of the parents. It’s the trend worldwide. The baby gets the parent’s status in the majority of the world, Mexico included.

    The world sees us as fools. So they take advantage.

    Have you been listening to TV airheads too much?

    Last time I heard that defense was from the Latino caucus in DC.

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