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?


Feel free to share.

147 Responses | Leave a Comment
  1. Ron says:

    Also think of the mockery it makes of the US immigration process.

    If the Executive branch is right to be so permissive in granting ‘unwarranted’ US citizenship to include babies of those in defiance of US law and even to retake what Mexico lost in the war with the USA (‘Aztlan’) by invasion if some are to be believed, and commit ID theft against US victims to accomplish it, how does the one suffering years of red tape in the legal process make any sense? The disloyal get the short cut and Washington’s blessing! This is aside from scholarly debate of the intent of the 14th for a moment.

    How do proponents of automatic birthright hold water in their argument in light of this?

    That’s why the system is broken. It keeps comedians employed worldwide! Even foreigners can see that. And they game our laws.

    The framers would go back to pay the King his tax and apologize for the Revolution if they could see where it led us today.

    Clearly the words of the US Constitution are twisted and spun to favor poorly hidden political agendas.

    The law that set the black slave free is used to make new brown slaves for cheap labor. They are illegal so they can be abused by US employers and they are afraid to complain to authorities for fear of deportation. They will endure this if it means a brighter future for their anchor baby.

    Ironic isn’t it?

  2. Rick O. says:

    I see that “Section 1992 of U.S. Revised Statutes” is mentioned in P.A. Madison’s article, and also more than once in this comment section. Can anyone tell me where online the actual text of Section 1992 can be found? I searched in US CODE for Section 1992 and there were a few results, but none of them appeared to have anything to do with what is stated here. I’d appreciate knowing the source document that is referenced herein. Thank you.

  3. stan says:

    Please think about whether you wish to say children of undocumented aliens are not “subject to the jurisdiction of the United States.” Children born to diplomats are not subject to the jurisdiction of the US because reciprocal treaties grant them and their parents diplomatic immunity to US jurisdiction. If a diplomat, or a child of a diplomat, commits a crime, US courts cannot prosecute. Likewise, in the 19th Century, the authority of State or even federal courts to prosecute indians was limited by by treaty. If you declare that children of illegal aliens are not US citizens, not only are you punishing babies, but you are giving the gift of criminal immunity to the drug cartel. Do you really want to do that?

  4. RB says:

    There is no need to change the US Constitution. The 14th Amendment doesn’t cover babies born here if they are of illegal or transient (tourist or migrant) parents subject to another nation.

    The US Constitution resists the pre-revolutionary concept of automatic birthright. The King of England still regarded the colonists as citizens of England even after they won their independence to break that yoke of monarchy.

    The framers of the 14th leave no doubt what is meant by subject to the jurisdiction of the USA.

    Starting with the Civil Rights Act of 1866 and following the floor debates of record to the writing of the 14th.

    Complete allegiance to the USA is required of the parent for the US citizenship to be granted to the newborn by the 14th.

    If a parent is defiantly side-stepping the law or acquiring it by deception and fraud, it is not allowed to be granted.

    All of that sort of thing is written in the record and in the notes by the framers.

    So why has the Executive Branch been violating the US Constitution all these decades?

    Everyone knows why: The political agenda of cheap labor and future voters. It’s the worst kept secret of both parties. (besides, didn’t Nixon say, If the President does it then it’s not illegal (or something like that).

    The consent of the public nationwide is against anchor babies for tourists and illegals just like the 14th is!

    Judges who forget the founders of the Constitution and start leaning back toward the monarchy style birthright should not take the oath to defend the US Constitution.

    It’s the job of Congress to regulate immigration in support of the law as intended. A statute is all that is needed.

  5. delbert says:

    the dumb ass in dc don’t read the 14 there full of it the babies must go back to mexico screw and the wet back if they don’t stop this i will bring 100’000 white women a mo to have there babies here they will be gop

  6. Mr. Crubs says:

    In other words, it isn’t local jurisdiction the Fourteenth Amendment recognizes but only the lack of owing jurisdiction 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.

    Yes, it isn’t local jurisdiction the 14A addresses, only the lack of it to some other other nation. The freedmen after the war owed no allegiance to any nation – including this one – and that is the principle of how they were recognized as new citizens by Lincoln’s emancipation.

    I’ll give you a thumbs up, Mr. Madison.

  7. JC In Texas says:

    “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.

    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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

    You must remember Senator Howard did not transcribe this. This was expressed orally.

  8. Anonymous says:

    A child born to alien parents who are illegally present in the United States is not an American citizen because he is not subject to the jurisdiction of the United States and therefore fails the conditions of the 14th Amendment. This is similar to the situation of American Indians at the time who were born on U.S. soil. Only later act of Congress conferred citizenship on American Indians. Likewise, the children of foreign diplomats, or, heaven forbid, children of the members of a foreign invading army would not be American citizens.

    The little county clerks all over the country who record birth certificates do not know the law and neither do the bureaucrats who fill our government offices. Congress, itself, and Senators like John McCain need to get educated

  9. Los says:

    Indians were not considered being nor recognized nor granted citizenship because they were not born in the United states. Indians were indigenous dwellers of the land that became known as – post conquest and settlement – as the United States. Why then the Indian wars were they citizens? The lies embedded in the false promises of “”40 acres and 2 mules”” by the federal government would not have been necessary but simply the implementation of those promises. But Indians were not citizens as their lifestyle and beliefs did not satisfy the “of like habits and customs clause” just to name one. A kid born here is not an American when his parents shoot across the border illegally, skirting all proper law and procedure – as citizenship has always been an object of law requiring a certificate of intent to immigrate LEAVING ALL BEHIND especially allegiances. We do not see that with the demonstration of a mexican flag atop an upside down USA flag — Mexicans come here for a season and return. To change our way of life and laws of our land to accommodate people who will realize they do not have the resources, stature or constitution to become naturalized and loyal Americans and eventually return home is a travesty.

  10. Alan says:

    It is not racism, it is a desire to see the laws applied honestly and equally.

    As matters stand, they are not.

  11. Alan says:

    Citizenship is not the problem.

    The problem is the privileges of citizenship which are abused.

    If the artificial enticement of taxpayer funded housing, food, healthcare and income were removed, this problem would be a minimal.

    If we remove the bait, nothing would be attracted.

  12. Publis says:

    Not likely. The constitution strictly defines treason, precisely to avoid demagogues like the author of the principal note from abusing that term, as did King George

  13. Mike Hansberry says:

    http://www.gosanangelo.com/news/2010/jul/24/americans-want-washington-to-resolve-immigration/

    Citizen,

    I can’t tell if you were being sarcastic, I hope that you were, but note that at least one prominent Hispanic activist has actually proposed the very same solution.

  14. Citizen says:

    If the intent of this is to discourage the children of illegal aliens (predominately mexican) from becoming US citizens, why don’t we just do the obvious: merge with Mexico and become the United States of North America and they will all become citizens! Another benefit is that we will no longer need to outsource jobs south of the border as we will be one nation.

  15. Bonnie L. says:

    The ignorance of individuals who want to pick and choose which part of our constitution they wish to obey, is unbelievable. This is racism, pure and simple.

  16. Brad Anderson says:

    Ok, let me make this REALLY simple.

    Say an American couple is visiting France for a few weeks, and the wife is expecting; the child is born in a Paris hospital. However according to the law, the child is STILL a citizen of the United States– NOT FRANCE– because both parents are American citizens.

    Now, reverse the situation: a couple from France visits the United States for a few weeks on vacation, and the wife is expecting; their child is born in a New York hospital. The couple then returns home to France with their new child.

    Is the child a citizen of France, or the United States?

    Logically, it should be a citizen of France; it’s illogical to claim that the child is a US citizen simply because that’s where it was born. I’m sure that both parents would be vehement at learning that their child cannot be a full French citizen, simply because it was born in a different country.

    And they were in the U.S. LEGALLY; it’s even more illogical to claim that for the child of an illegal alien born in the US.

  17. Fred R. says:

    Here is Sen. Harry Reid’s (surprising) take on this subject from 1993: http://therealharryreid.org/immigration1993.html

    TYPO in your article: “boarders” should be “borders”

    So what was to be the premise behind America’s first and only constitutional birthright declaration in the year 1866? Simply all children born to parents who owed no foreign allegiance were to be citizens of the United States – that is to say – not only must a child be born but born within the complete allegiance of the United States politically and not merely under its laws or BOARDERS.

  18. Brad Anderson says:

    This whole argument is ridiculous.

    If a child is born in a foreign country, and the parents return to their native country with the child, is the child a citizen of the foreign country, or the native country?

    OBVIOUSLY, the child is a citizen of the NATIVE country, and would be subject to the jurisdictions of THAT country.

    This is the meaning of “double-allegiance,” i.e. that the laws of the native country would apply to the child in terms of citizenship.

    Therefore, children of illegal aliens are DEFINITELY not natural-born citizens

  19. YerNeighbor says:

    Richard Smith; Please don’t identify yourself as an ‘official’ of a Tea Party and misspell so many words. The misuse of Their and There are not typos. They are grammatical errors and make you look ignorant. Additionally, the ‘Tea Party’ is not an official political party, as your signature implies.

    I endorse the Tea Party MOVEMENT and hope for all success defeating Democrats in November.

  20. Anonymous says:

    John,

    Your post boils the issue down very nicely -but do you have a citation to support your assertion of what the disputed text “clearly” means?

    The counter argument is that the text of the 14th and the 1870 immigration statute have same meaning(same breadth with different words). This makes sense to me as the more likely scenario since your reading places the 14th amendemnt at odds not only legislation passed shortly afterwords by many of the same legislators, but also with statements made prior to the passage of the 14th by some of the same legislators.

    Also, if your asseetion is correct then Elk v.Wilkins was wrongly decided. Surely indians belonging to a tribe would be amenable to the laws in the broad sense you propose and the indian in question had been born in the US.

  21. pat says:

    Feudal monarchies or presumed democracies cannot operate without fundamental understandings and premises – those details of whose allegiance to whom is recognized and voluntary.

    Governing is neither a privilege nor a right, assuming that consent of the governed is the primary fundamental principle upon which government is to take place. Vanities rely upon consent, not coercion, when the masses elect persons to serve in government, and governments are made of ideals and principles and policies, not people. Performance within the parameters of those ideals and principles is what “subject to jurisdiction” means in principle, but the carrying out of government in a manner conforming to the ideal is what determines consent. Dictated laws is not consent of the governed. Likewise, government that seeks to administrate for Dictator, Monarch, or Church cannot be performance rising to the level of consent of the governed. Constitutions formed to carry out the dictates of specific functions of presumed authority must be first recognized as having the authority to do the dictating, and to expect government to perform its bidding. Government can only be a lackey for legitimate purpose, not for illegitimate purpose; that is why Constitutions are critical to maintaining legitimate government. Departure from the Constitutional principle becomes automatic treason, and those who effectuate that departure are treasonous by definition. In that regard, there is nothing more important than the Constitution and its purpose to perform for all of its citizens, excluding none – whether those citizens may be called subjects, inhabitants, or residents. The purpose of the Constitution is to protect the rights and privileges of the born as well as the unborn in order to gain the stature by which the Constitution is expected to prevail beyond the normal lifetime of those living, and extends to the lifetimes of those not yet born. It would be a very chaotic world to be born into a society whose rules are dictated by the living already there, and changeable at whim by introducing a chaotic concept of changeability that depends upon who is living at the moment and who isn’t. The church long ago recognized these problems, and hence has brought great pressures upon the governments of the world to recognize its godly purpose, and therefore to influence government to respect its wishes and administrate for it; but that concession by government is wholly unauthorized, and wholly irrelevant to good government who main and only purpose is to administrate the Constitution, and to allow nothing and no one to interfere with that job. Government dedicated and devoted to government has fewer problems than government uncertain of its sovereignty, or its purpose. Allowing religion or economics to unduly influence its purpose is unwise and bad government regardless of who does the performing. The Constitution was never intended to be an adjunct to religious authority to administrate over the things the church doesn’t. There is no “we” in Constitutional government that includes the church. Government and religion do not rule side by side, separate from each other. There is only government, or the choice is only religious rule. It cannot be both, jockeying for survival, or jockeying for authority and sovereignty.

    Mankind has had difficulty deciding whether he wants church rule or government rule – but the decision is essential to survival, and the decision, in theory, was made in 1787 for the U.S., and at different dates for other countries.

    The founding fathers of America chose government, and all states ratified it, making it the law of the land. Attempts to erode its efficacy, or its meaning and interpretation have been the substance of judicial review since that time by various disgrutled groups and too privileged Judges and representatives. Governing is not difficult but requires the primary component of commitment. Mankind cannot serve two masters.

  22. johnsmith says:

    Yes, I agree, law regarding the birth right of citizenship to the foreign Place…..And also thanks for this nice article…..

    ————-‘

    johnsmith

    Reverse Mortgages

  23. JimAZtec says:

    Elk v. Wilkins said “subject to the jurisdiction thereof” means:

    The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is 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 (U.S.) direct and immediate allegiance.

    That I believe is exactly is how Howard and Trumbull had defined the meaning before the Senate.

  24. John says:

    They do have the benefit of text on their side.

    I find it odd that an ordinary statute passed sometime after the Fourteenth Amendment and containing the words “subject to a foreign power” is being trotted out here as evidence that that’s what the Amendment actually means.

    If anything, the fact that the same Congress used broader language in the Amendment than it did in the statute is evidence that legislators intended the Amendment to cover more ground.

    If the intent was to deny citizenship to a broad class of persons born in the United States–and this article has already demonstrated that lawmakers knew HOW, linguistically, this could be achieved–then the Amendment would use the same language as the statute.

    “Subject to the jurisdiction thereof” clearly just means “amenable to the laws thereof.”

    All persons physically present in the United States–save diplomats–are subject to its jurisdiction.

    This is why it is possible for cops in Idaho to issue enforceable speeding tickets to Canadians.

  25. Ken says:

    Would it be fair to say any child born in the US of non-citizens, whose affairs or rights are capable of being represented by a foreign country (via embassy or other foreign diplomatic office) exercising jurisdiction over said child, is a child not subject to the US jurisdiction at the moment of birth, and for that reason the child does not qualify for being considered a natural born citizen.

    Just as a child of a diplomat born in the US would have diplomatice immunity (not being a natural born citizen in that case) so also any other child born of parents with external jurisdication over them does not meet the definition for birthright-citizenship, since an external jurisdiction rightly applies at time of birth.

    For example, say a child is born of foreign parents in the US, can the US prohibit taking the child back to the foreign country without protest or interference of the foreign country invoking international conventions? If not, then the US has no jurisdiction, and the child does not meet the test of the 14th amendment.

  26. JimAZtec says:

    “The United States allows individuals, under some circumstances, to hold dual citizenship. That is in direct conflict with the analysis given here.”

    Your analogy is deeply flawed. The United States has never recognized a different citizenship of its citizens due to being born in another country whose laws might bestow the countries own citizenship on them. That country might recognize the dual-citizenship but the United States never has.

    I don’t think we even viewed American citizens born in England as both natural born British citizens and natural born Americans because they were not of the legal age to consent in throwing off their American citizenship through their father to remain solely British.

  27. Dean says:

    The United States allows individuals, under some circumstances, to hold dual citizenship. That is in direct conflict with the analysis given here. Therefore, a person born to US citizens in another country that confers citizenship on that person would, by this definition, not be a citizen of the US.

  28. Chad I think, and understand this is my openion, you are not a “SERVANT” to the govt. The Govt serves “WE THE PEOPLE”

    Our Congressman represent us and should follow the desires and wishes of the majority of the people. I know it seems lately they do not hold to there Oath Of Office. From another perspective, while in the armed services you are serving your country not the federal govt.

    With that I’m gone…. All the best to you.

    Richard Smith

    President

    Tomball Tea Party

  29. Lindsey Melihercsik says:

    Today White House Lawn- Mexican President Calderon’s response regarding to Living with Values & Princilpes that unite the U.S. & Mexico..”We can do so with a community that will promote a DIGNIFIED LIFE and orderly way for both countries, who are, SOME of THEM, still living here in the shadows with such laws as Arizona Law that is placing OUR people to face discrimination. “OUR PEOPLE” Here the Mexican President acknowledges Mexican illegal aliens are his Foreign Subjects. Their Allegiance IS TO Mexico! Proven by the shere fact they send over 1 Billion U.S. Taxfree Dollars across the border every year. The U.S. citizen is drowning in debt, while the Mexican Govt is prospering because their Northern Cash Cow. The Mexican Govt Benefits from the enormous influx of Cash, while We continue to provide their Subjects with the DIGNIFIED LIFE. The U.S. is bleeding from the arteries, Anchor Babies are not legal. If their parents are recognized Citizens of another Country, than they are also Citizens of that Country. No Other Country in this world will give an American Foreign Citizenship just because that American was Born there. Why should the United States? If you don’t take legal steps to Citizenship upon entry to US (Crossing Legally if the 1st step) than I should not be forced to Support You. The U.S. Citizen is struggling enough.

  30. JIM says:

    IF A PERSON COMMITS A CRIME(JUMPING THE FENCE LIKE A RABID DOG)And have kids, the kids should not benefit from the crime.IF I ROB A BANK AND GIVE THE MONEY TO MY KIDS,CAN THEY KEEP IT?HELL NO!CAN I STAY OUT OF JAIL BECAUSE I HAVE KIDS.BE SERIOUS.CLEAN UP YOUR OWN FILTHY RATHOLE OF A COUNTRY BEFORE YOU INFECT MINE.

  31. Chad says:

    Hmm… I was born in Florida state and refuse to give allegiance to either the corporation known as “State of Florida” or the “United States”. I simply give allegiance to myself… making myself “I am that I am” I am simply part of “We the People” those who created the government to be their servant.

  32. David says:

    Go back to Mexico and have a real revolution. Stop living in the 18th century.

  33. Chris Marsh says:

    Hell Mark in Florida, my brother and I were born in Washington DC (Sibley Memorial Hospital). That makes us U.S. citizens. Our parents were slaves (Wisconsin and Michigan).

  34. DeeWhite says:

    In Reply to Immortal_Relic: Dear Relic: Article I of what you call the “written constitution” states, The legislative power herein vested…”. Article VI further tells us that only enactments “…in pursuance” of that Constitution have force and effect. Enactments not in pursuance of the Constitution are void, stillborn. A government officer acting under pretext of a void enactment is acting in his private capacity.

  35. Harry James says:

    In Reply to Immortal_Relic:

    Some very good points indeed. However, please consider the following:

    “No white person born within the limits of the [several] United States and subject to THEIR [not “its jurisdiction” or the “jurisdiction thereof” as in the 14th amendment] jurisdiction … or born without those limits, and subsequently naturalized under THEIR [i.e. the several states’] laws, owes his status of citizenship to the recent amendments [13th and 14th] to the Federal Constitution. The purpose of the 14th Amendment … was to confer the status of citizenship upon a numerous CLASS OF PERSONS domiciled [not on all persons born] within the limits of the United States who could not be brought within operation of the naturalization laws because native born, and whose birth, though native, at the same time left them without citizenship. Such persons were not white persons but in the main were of African blood, who had been held in slavery in this country … ” Van Valkenburg v. Brown 43 Cal 43, 47 (1872)

    I do not know if this case is still valid, but in 1872 this was the view of a California court.

    Notice that section 1992 of the U.S. Revised Statutes reads: “All PERSONS born in the United States and not subject to any foreign power, … are DECLARED to be citizens of the United States.”

    However, Amendment 14 reads: “All persons born in the United States … AND subject to the jurisdiction thereof ARE [not declared to be] citizens of the United States.”

    Such PERSONS must not only be born in the United States, they must also be “subject to the jurisdiction [not jurisdictions as in “their” jurisdiction] thereof. “It’s jurisdiction, not “their” jurisdiction as it is written in Amendment 13.

    Notice also that Sec. 1992 does not say that these PERSONS born in the United States and not subject to any foreign power ARE citizens of the United States. It only “declares” them to be citizens of the United States.

    Does a declaration in the U.S. Revised Statutes make anyone a citizen of the United States? What does it mean to “declare” some thing to be a fact?

    DECLARE. To make known … To signify … To publish; to utter; to announce clearly some OPINION or RESOLUTION. To ALLEGE or affirm. Black’s Law Dictionary, 4th edition

    Allege? Opinion? Resolution?

    ALLEGE. To state, recite, assert, or charge; to make an allegation. To affirm, assert, or declare. Black’s 4th

    ALLEGATION. The assertion, declaration, or statement of a party to an action, made in a pleading, setting out what he EXPECTS TO PROVE. Black’s 4th

    To declare or allege that all persons born in the United States who are not subject to any foreign power are to be citizens of the United States does not make them to be such citizens, lacking proof that the allegation is true. Where is the proof that such persons so born have voluntarily submitted themselves to the dominion of the U.S. federal government – i.e. “consented” to be governed?

    We know that “all MEN are born free and independent” so how do these men born free and independent become PERSONS who are subject citizens of the United States federal government?

    It is clear where a naturalized citizen CONSENTS to be governed by reading the oath he or she takes to be naturalized, but where does a native born man or woman take such an oath wherein he CONSENTS to be subject to the jurisdiction of the United States federal government?

    Could the Sec. 1992 “declaration” be nothing more than an “disputable presumption” a.k.a. an unproved allegation?

    Remember also that “Every one of full age is PRESUMED to be sui juris and one who is sui juris has all the rights to which a freeman is entitled.” Bouvier’s Law Dictionary, 1856

    In reality “every one” appears to be PERSONS who are PRESUMED to be 14th Amendment citizens of the United States federal government.

    STATUS. Standing, state or condition. The legal relation of individual to rest of the community. The rights, duties, capacities and in-capacities which DETERMINE a person to a given CLASS. [It is] A legal personal relationship, not temporary in its nature nor terminable at the mere will of the parties, with which third persons AND THE state are concerned. While term implied relation it is not a mere relation. It also means ESTATE, because it signifies the condition or circumstances in which one STANDS with regard to his property. Black’s Law Dictionary, 4th edition

    All men may be born equal, but today all men are presumed to be in the “class of persons” who are subjects of the United States federal government and such SUBJECT class of persons cannot own any thing absolutely, can they?

    I suppose that is why all men presumed to be in such “class of persons” are referred to in their deeds as “tenants of the entirety” or “tenants in common” rather than proprietors.

  36. Immortal_Relic says:

    This would all be fine if the written Constitution had ever been adopted.

    The Declaration of Independence freed Man from all written law as he was equal under the creator.

    The Articles of Confederation set up representatives, United States in Congress assembled, of the 13 free and independent states to protect their interest and for their protection from within and without, Man was still free and not a part of that document. Although this document stated that a Man could now freely inhabit or be a citizen of a state.

    The Northwest Ordinance was a land grab by the United States in Congress assembled in which the representatives of the states took proprietary power, the power of ownership. Proprietary not government power is being exercised under this document. Federal power or authority arises from this proprietary power.

    The wriiten Constitution (this constitution) is never adopted and a switched Constitution of the United States is put in its place. Therefore all law is for the territory owned by or ceded to the United States of America and it is their and the people who volunteer to live in that territory called citizens of the United States which gives the Federal government jurisdiction and is where all written law applies.

    The Office of President is an appointed position by the Commitee of States, which became the Senate in the written Constitution, under the Articles of Confederation at Art. IX Clause 5.

    The written Constitution “this Constitution” mandates qualifications to this appointed position in the written Constition at Article II Section 1 Clause 5. However, George Washington one of the persons who established this Constitution would be one year shy of meeting those qualifications when appointed as the 1st President. So he took the employees oath at Article II Section 1 Clause 8 to preserve, protect and defend the Constitution of the United States. For the written Constitution to be adopted he must have meet the qualifications of that Office and been bound, through signature, to support “this Constitution” by taking the oath at Article VI Clause 3.

    The Senators and Representatives before

    mentioned, and the Members of the several

    State Legislatures, and all executive and judicial

    Officers, both of the United States and of the

    several States, shall be bound by Oath or

    Affirmation, to support this Constitution; but no

    religious Test shall ever be required as a

    Qualification to any Office or public Trust under

    the United States.

    No president in the history of America has ever been bound by that oath and therefore the wriiten Constitution “this Constitution” while ordained and established has never been adopted or more than a document for proprietary power, the power of ownership. Proprietary not government power is being exercised. Federal power, Corporate, or authority arises from this proprietary power over the the land owned by or ceded to the United States of America; a place I do not reside in.

    The Federal Corporation doing business as the United States and its written laws do not apply to man freely inhabiting the states but a person places himself within their jurisdiction who claims that they reside in their territory as citizens of the United States under their un-adopted Constitution for the United States “the Constitution”

    Where in the written constitution was any power given to legislate for Man or any other organic law for that matter unless he consented to their authority.

  37. borderraven says:

    An alien in a foreign country must obey the laws of that country. However, a child born to an alien, is not subject to the Jurisdiction of the USA, as their parent(s) is/are traveling under a passport, except both an illegal alien and

    an alien under passport, have not relinquished bonds to their homeland, nor established allegiance to the USA, and the citizenship of the mother transfers to the minor child. Aliens, are not subject to military conscription of the USA, they can run to or call on their consulates or Embassy, for help, since they owe allegiance to and are subject to the

    jurisdiction of laws and treaties, of their homeland, not the USA. A child born to an alien mother, with no known USA citizen father, on USA soil, is not a USA citizen, since the parent is subject to foreign jurisdiction, and has not established allegiance to the USA. Also, the 14th mandates all laws be applied equally.

  38. Sara says:

    In Reply to jeff: We are not a democracy. The U.S. is a Republic.

  39. Sara says:

    In Reply to Larry:

    Of course she is wrong. Prior to 1866 slaves children born were not automatically given citizenship as slaves were not considered citizens. That is what the 14th amendment intended to change giving ex-slaves and their children citizenship status.

    I can not only not believe some of the idiots that are in W.D.C., but also the idiot voters who keep re-electing them.

  40. Sara says:

    In Reply to Jim Delaney:Jim, we have not gotten to the point of automatically extending citizenship to those born here of foreign or illegally here parents who owe allegiance to their home countries. What is happening is a total mis-use of the 14th Amendment with the pro-illegal alien groups such as LaRaza, etc. (and our news medias). They are using the boo-hoo, the babies are citizens balderdash when raids catch a bunch of the illegal parents. You know the saying, repeat a lie often enough and people will eventually believe it is the truth.

  41. Chris Marsh says:

    In Reply to Jim Delaney:

    I think we presumed that the unofficial immigrant (I am being generous) is staying indefinitely. That may not be the case. On that technicality, how can we be sure what the allegiance of the undocumented immigrant is? Who are we to presume citizenship for their babies born here?

    We might want to publicize on the border and elsewhere “you and your children cannot be citizens unless you contact the authorities (any police officer) immediately. Failure to do so is a crime. Any police officer can refer you to immigration authorities.”

    “Welcome to America.

    We welcome you.

    Follow the law, don’t hide from it.”

  42. Horatio says:

    The contention that every foreign national born in this country could have U.S. citizenship imposed upon him over the wishes of his parents would seem to be high handed. Let’s look at it from the hypothetical viewpoint of U.S. nationals who have a child in a hospital in the fictional Islamic state of Urastan. Under Urastan law, all born within its borders hold allegiance to King and must spend their first ten years of their life in that country. The parents of such a child would recoil in horror at the prospects of this and claim the child to be a citizen of the U.S. by virtue of parentage. What is the moral difference between the position of those who claim that all born on U.S. soil have citizenship imposed upon them by the State, in spite of parental desire, and that of dictatorship which does the same? The answer is there is none. Jus sanguis is the only morally defensible position, and P.A. Madison does well in making the case for the framer’s intent.

  43. Matt says:

    In U.S. v. Wong Kim Ark the majority held the meaning of “subject to the jurisdiction” had been adjudicated in Elk v. Wilkins: “The only adjudication that has been made by this court upon the meaning of the clause, “Ëœand subject to the jurisdiction thereof,’ in the leading provision of the Fourteenth Amendment is Elk v. Wilkins.”

    This is something I have totally missed. I agree this statement by the court places the emphasis upon Elk v. Wilkins for the adjudication of subject to the jurisdiction under the 14th. Requiring political rights to complete the jurisdiction makes sense because that is truly what makes one a subject. Excellent article.

  44. Mikey says:

    The Wong Kim Ark Court mangled the meaning of the phrase

    by applying 2 seperate meanings of the phrase to the objects of the phrase. “Those Born” simply had to be within territorial limits of the US, while those “Naturalized” had to renounce their previous allegiance to a foreign government, and pledge SOLE Allegiance to the US. “Those Born” are allowed to keep a dual allegiance (dual citizenship) until the age of consent, where they can “elect citizenship”, while those Naturalized need to have SOLE political allegiance. How can it be possible that “Those Born” and qualified to be President or VP, are held to a lesser standard and test of jurisdiction? It is NOT even in the realm of possibility that the Framers thought that children of illegal aliens should be qualified to be POTUS or VP.

  45. Jim Delaney says:

    In Reply to Tami: I think you probably have it right, but yours is a politically incorrect stance. So you know what that means.

    Everytime I read and re-read both this article and the “meaning of natural born citizen” article, I am left with the rather clear impression that children born of illegal aliens on US territory were not intended by the framers to be US citizens since they are born of parents with loyalty to a foreign jurisdiction. That seems pretty straightforward. Not sure yet how we got to the point of automatically granting US citizenship (vs natural born citizenship) to ANYONE born within the jurisdiction of the US. Am still working on that. At this point, it just doesn’t make any sense at all–except to those insufferably self-serving politicians who forever try to ingratiate themselves to minority groups.

  46. Wall-E says:

    Const. for the USA is a political document and the founders of it scoundrels and liars. It is well known they did what they had no authority to do in their capacity as delegates from the several States. The Federalists were nationalists…it was coup.

  47. obamaprez says:

    In Reply to Tami: To all due respect you are a trash talker You should work in a landfill You will be a formidable worker

  48. Richard says:

    In Reply to Tami:

    There must be a law regarding the birth right of citizenship to the foreign country.

    Like the British Nationality Act 1948 Part II Section 5.

    This means the British Subjects children are born “subject to the jurisdiction of Great Britain”.

    Mexicans do not have such a law that affects the citizenship of their children.

    Note – Obama was born subject to the laws of Great Britian because his father was a British Subject at the time of Obama’s birth.

  49. Tami says:

    If I understand this correctly, if the Father is a citizen or Mother, (if the father is not alive) is a Citizen, Then the child is a Citizen. If the father, or Mother are subjects of a forign Country the child is a citizen or subject of the originating country. So unless the parents are Naturalized, then the child is a subject of their parents country of Origain. Then illigal “anchor babies” are not given automatic Citizenship of these United states?

    It has just become the thing to do with no legal standing. Do I have this right? If the parents are subjects of Mexico and illigaly cross the border, with no intention to renounce their Mexican Citizenship, and with no intention of taking the Oath of The United staes, with loyalties to their country of origan, then the infant is a Mexican Citizen no matter where he was actually born?

Leave a Reply




You may edit your comment after being submitted.