Birthright Citizenship, and What It Means to Be “Subject to the Jurisdiction” of the U.S.
Last week, Shikha Dalmia at Reason ran this highly disingenuous and disappointing policy rant against the push by several states to enact stronger laws to curb illegal immigration. In it, Dalmia falsely claims that “automatic or birthright citizenship” is “a right enshrined in the 14th Amendment,” erroneously explaining that
the 14th Amendment is unusually clear about extending citizenship rights to everyone born on American soil except for children of foreign diplomats and American Indians (who belong to sovereign tribes). Eliminating these rights for anyone else will require three-quarters of the states to ratify another amendment.
Frankly, I don’t know how to explain these claims other than an outright intent to mislead. In fact, the question of whether birth on U.S. soil is enough, or whether only “children of foreign diplomats and American Indians” are excluded rather than anyone not “subject to the jurisdiction thereof” as the Fourteenth Amendment actually states, is a contentious issue that many constitutional experts are currently vigorously debating.
In my ongoing research into this area of law, I’ve come across some interesting cases shedding insight on the concern in British case law concerning persons born on British soil yet subject to the jurisdiction of a foreign sovereign. Various European countries grappled with the problem of children born to citizens of foreign nations. In such instances, it is clear that children followed the citizenship of the father, but faith and credit to the jurisdiction of the country of birth was also given. Recognition of the proper jurisdiction to which a person was subject was important since the laws of one nation may purport to conscript putative citizens of a foreign nation into military service, potentially pitting those persons against his adopted country. See Prentiss Webster’s A Treatise on the Law of Citizenship in the United States: Treated Historically (Bender 1891), at 58-59. In this light, it is easy to see the concern against extending citizenship, the right to participate in the legislature, or of becoming the Commander-in-Chief of the United States military forces, to a person subject to the jurisdiction of a foreign power. For example:
This rule was laid down at an early date in the state of Massachusetts as follows: “This claim of the commonwealth to the allegiance of all persons born within its territory may subject some persons, who, adhering to their former sovereign, and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when the opposing sovereigns claim their allegiance. But the inconvenience cannot alter the law of the land. Their situation is not different in law, whatever may be their equitable claims, from the situation of these citizens of the commonwealth who may be naturalized in the dominion of a foreign prince. The duties of these persons arising from their allegiance to the country of their birth, remain unchanged and unimpaired by their foreign naturalization. For by the common law no subject can expatriate himself.” Ainslie vs. Martin, 6 Mass. Rpts.
Id. at 78. Similarly,
The Revised Statutes, section 1993, declare children born out of the limits of the United States, whose fathers were or may be at the time of their birth, citizens of the United States, to be citizens of the United States.
This statute is held to mean that the legislation of the United States should not be construed so as to interfere with the allegiance which such children so born owe to the country of their birth, while they continue within its territory. Under this, if the French government should see fit to hold Verdelet as a citizen of France for reason of birth within its territory, it might do so, and the government of the United States could not interfere with such a claim, if made by the French government upon him.
Id. at 119. This appears to give insight into the understanding of the “and subject to the jurisdiction thereof” clause: U.S. law was not meant to interfere with the jurisdiction other sovereigns might have over persons born or naturalized in the U.S. In a government of consent such as the United States, consent may not be presumed to be given, and thus no citizenship may be conferred, where another sovereign lays claim to the person’s allegiance.